III. Customary Framework(s) for Women’s Land and Property Rights in Tanzania

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Customary Tenure

Customary law is recognized by communities as “having the force of law,” and may be either written or unwritten. In Tanzania the law has consistently held that it governs all people of African origin, unless they can prove otherwise, regardless of their religious affiliation.[146]  However, customary rules are not legally valid if they violate the constitutional and legal mandates for gender equality. In practice, customary rules generally apply whether or not they violate statutory norms.[147]

Marital Practices

Marriage in Tanzania, by custom, is generally patrilocal and patrilineal. A minority of communities (approximately 20%) follow matrilocal marriage practices.[148] Polygamy is the norm, and there is no maximum limit on the number of wives a man may take.

Some of the country’s patrilineal marriage and inheritance practices have been restated in the Local Customary Law (Declaration) Order (No. 4) of 1963.[149] As noted in Part II above, this instrument has the force of statute in Districts where it has been approved, and where it has not been superseded by statutory law.  The application of customary law, as restated, varies greatly depending on the discretion of the judge and the geographic region.[150] Additional locally-recognized rules (including those of matrilineal communities) are valid so long as they can be proven in court.[151] In some cases, these practices have been found to support women’s rights to inheritance to a greater extent than indicated in the general codification.[152]

Inheritance and Marriage Customs of Matrilineal Communities

Approximately 20 percent of communities in Tanzania follow matrilocal and matrilineal marriage practices. These include the Makonde, Yao, Makua, Luguru, and Mwera communities, among others.[153] A belt of the southern part of Tanzania is comprised of predominantly matrilineal communities.[154] Local Customary Law (Declaration) Order, 1963, only applies to patrilineal communities, but the unmodified customary law remains in force for matrilineal communities.[155] The communities are normally formed in proximity to a man who is often the eldest brother of the sisters. This “uncle” plays an important role as the leader of the family in the matrilineal system.

Traditionally, in the community’s matrilocal system, the husband in a newly married couple comes to the village of his wife to live with her family, after receiving approval from the family and maternal uncle, and in some cases, giving bride wealth to the wife’s kin (the bride wealth given in matrilineal communities is generally more symbolic in nature than those in patrilineal communities). These villages are composed of related groups of women, living with their spouses, unlike a patrilocal community where the village would be composed of related men and their spouses. In addition, divorce is more common in matrilineal communities, and a bride wealth must be repaid upon divorcing.[156] Upon divorce in the Luguru clan, for example, children are retained by the mother, and the husband leaves with nothing. Similarly, if the mother dies, the children are usually cared for by a maternal uncle, not the father.

Traditionally, in the case of the Luguru community, if a man is married to more than one woman, the wives would each live on the land within their own communities, and he would visit each of them.[157] However, this has changed in recent years, and polygamous men and their wives began to live all together, forcing some of the women to leave their community of lineage.[158]

The inheritance of property also follows maternal relationships, but the details of these customs are relatively unknown and vary.[159] To an extent, the communities remain disadvantaged because the unwritten customary laws applicable to their communities must be proven in a court as a question of fact whenever the customary law of the matrilineal community is invoked.[160] For example, in matrilineal communities, nephews inherit land, whereas in a patrilineal community sons would inherit the land. Yet, women still do not have the same inheritance rights as the men in either scenario.[161] Women are generally given access to land through a male relative, and although she does not have a right to inherit, a daughter who stays in her matrilineal community may receive a small piece of land from the family, and she may give that land away to whomever she chooses. In the case of the Luguru community, in recent years there has been a greater shift towards a more patrilineal policy of inheritance.

In addition to cases of abandonment or transfer of land by the head of household (discussed above), women become vulnerable to losing access and rights to their land in the context of divorce or death of their husband. As a general rule under customary law in Tanzania, a divorced woman will lose access to land and her family is required to pay back the bride price.[162] “This rule continues to be widely applied, in contradiction to the Law of Marriage Act of 1971, which stipulates that bride prices are no longer required for a marriage to be legal, and which provides for division of matrimonial assets on divorce.”[163]  Although the legal framework in Tanzania provides women with a right to property earned jointly upon dissolution of a marriage,[164] in practice this does not often play out. 

Women may also lose rights to customary land upon death of the husband, as customary law discriminates heavily against women’s inheritance, and eviction of widows by in-laws is common.[165] Also, the fact that customary marriages are not subject to registration leaves women at higher risk of losing their land upon death or divorce.[166]


 

Inheritance

Customary rules on inheritance vary across Tanzania, depending on ethnic community. In almost every case, however, customary systems of inheritance operates contra the statutory protections for women expressed in Constitution (discrimination based on sex), the 1995 National Land Policy (customary rules govern inheritance, unless these rules are “contrary to the constitution and principles of natural justice”), and the land acts of 1999 (customary law is void to the extent it discriminates against women’s “lawful access to ownership, occupancy or use of land”).[167]  The High Court, in the landmark case Ephrahim v. Pastory (1990), decried customary restrictions on women’s rights to inherit clan land as “oppressive and unjust laws of the past.”[168]

Inheritance and Marriage Customs of Patrilineal Communities

As mentioned above, upon marriage in a patrilineal society, the wife will move to the community of the husband. In a polygamous home, generally each wife and her children have their own home and land, and operate as a separate economic unit, although in some households wives share housekeeping and farming duties.[169]

Customary laws of inheritance that apply to patrilineal communities tend to disproportionately favor the male heirs of the family.[170] In patrilineal systems, individuals belong to her or his father’s lineage, and the lines of inheritance of property follow the male bloodline. If there are male heirs, customary law prevents women from inheriting land for fear that they would transfer the land outside of the family by marriage.[171] The customary law also ensures that widowed women do not have a residual right to their family’s land.[172]

The Local Customary Law (Declaration) (No.4) Order, codified the customary law and specifically states that inheritance follows the patrilineal side.[173] Most patrilineal communities’ rules of inheritance have been codified, although there are some unwritten customary rules that may be proven as an issue of fact in court. The Order also provides that women may inherit land, with the exception of clan land.[174] The women may use the clan land, but cannot sell it. Additionally, a woman may inherit the land in the event that there are no men in the clan.[175] Some patrilineal communities discourage inheritance of land by daughters because daughters are expected to move away once they marry.[176] Some of these communities include Bahaya, Maasai, Chagga, Pare and Sambaa peoples.[177]

According to the codified customary law, in polygamous families, the first male child of a man’s most senior wife is the first heir. Daughters may inherit to a certain extent, based on degrees specified below.[178]

A widow has the “choice,” after her husband dies, of marrying one of the deceased’s relatives. If she refuses, her family does not have to repay the bride price and she may return to her own relatives.[179] This usually means, in practice, that a widow who refuses to marry her husband’s relative is evicted and dispossessed.[180] Property grabbing from widows, eviction of widows, and widow inheritance are reportedly common.[181]

According to Local Customary Law (Declaration) Order No. 4 of 1963, a widow with no children has the right to half of the property she acquired during the course of her marriage, minus any debts of the deceased.[182] This entitlement is rarely if ever realized in practice, however.[183]

A widow’s inherited rights are only valid so long as she does not marry outside of the husband’s family.[184] So long as land is available in the widow’s natal village, she is usually able to return there to live.

Under customary law, there are three “degrees,” or “tiers” for inheritance to lineal descendants, as follows:

(1)   First degree heirs: Usually the first son from the first house is the heir in first degree. He inherits first, receiving the largest share of the estate.

(2)   Second degree heirs: Usually all other sons are considered second degree heirs. They inherit the next largest share (after the first degree heirs), with older sons receiving more than younger brothers.

(3)   Third degree heirs: Usually daughters are considered third degree heirs. They inherit a smaller share yet, with older daughters receiving more than younger sisters. If the deceased had no sons, the first daughter of the first house becomes first degree heir.  However no female child may fully inherit clan land, but may inherit only the rights to use it without selling it during her lifetime.[185]

If a deceased man has no lineal descendants, his brothers are considered first and second degree heirs, and his father, paternal uncles and aunts, and wife are considered to be third degree heirs.[186]

Under the rules prescribed above, no share of the deceased’s estate goes to a widow so long as survivors include relatives of the deceased’s clan. A surviving husband cannot, likewise, inherit from his deceased wife’s estate, unless she has no children or family members.[187]

Intervivos gifts are allowed, and are accounted for in distributing the estate after death. It is not clear whether custom allows a husband, while alive, to distribute to his wife any part of the estate.[188]

If daughters, wives, or any other women inherit, they generally only inherit lifetime use rights to immovable property, and can only sell the property if there are no male family members. Males, on the other hand, inherit property absolutely.[189] The High Court has ruled that customs prohibiting females from selling clan land are “discriminatory, unconstitutional and in violation of Tanzania’s international human rights obligations.”[190] The High Court’s ruling rendered unconstitutional the provisions of the Local Customary Law (Declaration) Order that prohibit “women from selling clan land.” The Order has been neither amended nor repealed, however, and so protections for women created by the 1989 case can be realized only by those who challenge the customary rule in court.[191]

Commentators have noted that the customary rule limiting women’s inheritance of immovable property to a lifetime use right violates the Constitution, international human rights law, Part IV of the Law of Marriage Act, no. 5 of 1971, and also the 1999 Land Acts. These laws all recognize women’s equal right to acquire, own and dispose of property.[192]

In the past, the oldest male child was usually responsible for taking care of his widowed mother, thus justifying his greater share of the inheritance.[193] However in practice, daughters are increasingly taking charge of their parents’ care. According to the Law Reform Commission, “nowadays daughters…be they married or unmarried, appear to play a more leading role in caring for their aging parents than is the case with sons.”[194]

One serious impediment to spousal justice under customary law is the practice of appointing a male administrator to the deceased husband’s estate.[195] The role of the administrator under probate law is to help distribute the deceased’s assets. However this role is often confused with that of a beneficiary, and in practice the administrator may take for himself the majority of the estate’s assets.[196] Most customary systems call for the deceased’s father or other male relative to be the administrator.[197]

Enforcement

If Customary or Islamic law applies to an inheritance case, Primary Courts officially have original jurisdiction. However under customary systems the Clan Councils usually handle inheritance issues first, and they only go to the Primary Court in the event that one of the parties appeals the Council’s ruling.[198]  The Primary Court may send women back to the Clan Council if they have by-passed it in the first instance.[199]  The Courts may also call upon Clan elders to give evidence, and lean toward the position supported by the Clan. On the other hand, the Courts have been known to appoint administrators, who benefit from the deceased’s estate rather than the widow and her children.[200]  Clan Councils usually honor wills, but if they conflict with customary norms, the Council may have a difficult time with disputes that arise from family members’ protests. In this case, the Clan Council has authority to “order a variation of the Will.”[201]
The Village Land Councils are tasked with dispute resolution for cases involving village lands (see discussion above). However the Village Land Act provides that disputes regarding customary rights of occupancy (e.g., those involving succession or inheritance) shall be determined based on customary law.[202]