IV. Endnotes & Citations

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Endnotes & Citations

1Tanzania Land Policy and Genesis of Land Reform Sub-Component of Private Sector Competitiveness Project, National Land Use Planning Commission 1 (on file with Landesa).

2 Id.

3 Id.

4 Id. at 2.

5 USAID Country Profile: Tanzania, Property Rights and Resource Governance, USAID (2011), at 1–2, [hereinafter Tanzania Profile].

6 Tanzania Land Policy and Genesis, supra note 1.

7 Id.

8 Id.

9 Id.; Ingunn Ikdahl et al., Human Rights, Formalisation and Women’s Land Rights in Southern and Eastern Africa, 57 Stud. in Women’s L. 1, 36–37 (2005),  

10 Id.

11 Id. at 37.

12 Marjolein Benschop, Rights and Reality: Are Women’s Equal Rights to Land, Housing and Property Implemented in East Africa? (2002), at 106.

13 Id. The Shivji report identified a number of key concerns with the land administration system. For example, the authors found that vesting of radical title in the President undermined tenure security through uncontrolled evictions and acquisitions. It also contributed to protracted control over land by the executive, as well as undue (monopolistic) presidential influence over land governance and administration. Continued bureaucracy over allocation, use and development of land was found a critical problem to the majority of the people. In addition, authors cited a lack of transparency, public oversight accountability, abuse of power and corruption in land transactions. R.W. Tenga and J.M. Kironde, Study of Policy, Legal and Institutional Issues Related to land in the SAGCOT Project Area (2012), at 110 [draft report, on file with Landesa].

14 Tanzania Land Policy and Genesis, supra note 1

15 International Fund for Agricultural Development (IFAD), Rural Poverty in Tanzania, Rural Poverty Portal, http://www.ruralpovertyportal.org/country/home/tags/tanzania (last visited June 17, 2014).

16 Fred Nelson, Emmanuel Sulle & Edward Lekaita. Land Grabbing and Political Transformation in Tanzania. Paper presented at the International Conference on Global Land Grabbing II, Oct. 17-19, 2012, organized by the Land Deal Politics Initiative, Cornell University, Ithica, New York.   

17 EPAR Brief No. 134: Gender and Agriculture in Tanzania by M. K. Leavens & C. L. Anderson (2011).

18 Tanzania Profile, supra note 5 at 1-2.

19 Ikdahl, supra note 9, at 38–40; Tanzania Profile, supra note ­­­5.

20 See generally Tamar Ezer, Inheritance Law in Tanzania: the Impoverishment of Widows and Daughters, 7 Geo. J. Gender & L. 599, (2006). See also Benschop, supra note 12, at 123; USAID Issue Brief: Land Tenure, Property Rights, and Gender, Challenges and Approaches for Strengthening Women’s Land Tenure and Property Rights, USAID (2013), [hereafter USAID Issue Brief].

21 Ezer, supra note 20, at 601; Ikdahl, supra note 9, at 40.

22  Orton Kiishweko. 2012. Tanzania Takes Major Steps Towards Curbing Land “Grabs.” The Guardian Development Network.

23 Law of Marriage Act (1971), at §56, 65, 114.

24 Land Act (1999), at §3(2).

25 Village Land Act (1999), at §3(2).

26 Mortgage Financing (Special Provisions) Act of 2008 (2008).

27 The Constitution is currently under review in Tanzania, with the goal of a national referendum to adopt a new constitution by the end of 2014. Tanzania to Have New Constitution in 2014: Kikwete, News of the South (Jan. 14, 2014), http://newsofthesouth.com/tanzania-to-have-new-constitution-in-2014-kikwete/.  At the time this guide was written, the second proposed constitutional draft did not specifically address land issues, despite advocacy efforts by multiple stakeholder groups within the country for a new chapter on land. Id.

28 Constitution of the United Republic of Tanzania (1977).

29 Redress to a violation of equal rights or protection lies with the High Court, which is not accessible by most people, and particularly not to most rural women. And when the High Court does determine that rights have been violated, the specified remedy is not individual damages, but rather to give the state (or agency against which the charge is rendered) the opportunity to rectify the offending law or action. Until this happens (or a period of time stated given by the Court expires) the discriminatory law remains on the books. Benschop, supra note 12, at 104.

30 National Land Policy (1995).

31 Land Act, supra note 24.

32 Village Land Act, supra note 25.

33 Land Acquisition Act (1967).

34 Law of Marriage Act, supra note 23.

35 Ezer, supra note 20, at 629; Ikdahl, supra note 9, at 40.

36 Land Act, supra note 24, at §4(1).

37 Id. at §32(1).

38 Id.

39 Id. at §31.

40 Id. at §181.

41 Both customary and granted rights of occupancy have equal status and effect under the law. Village Land Act, supra note 25, at §18. There is no specified maximum term for customary rights of occupancy. Benschop, supra note 12, at 110.

42 Benschop, supra note 12, at 115, citing Village Land Act (1999), at §12(1).

43 Benschop, supra note 12, at 105, referring to the Village Land Act (1999).

44 Village Land Act, supra note 25, at §20(2).

45 Id. at §22.

46 Id. at §22(1), (2).

47 Id. at §22(3)(ii)(b).

48 Id. at §23(2)(c).

49 Id. at §57(3).

50 Id. at §30(4)(b).

51 Id. at §33(1)(d).

52 Id. at §43 (9).

53 See Benschop, supra note 12, at 109; Tanzania Profile, supra note 5.

54 Ezer, supra note 20, at 604; Ikdahl, supra note 9, at 39–40.

55 Carpano, F. 2010. Strengthening Women’s Access to Land: the Tanzanian Experience of the Sustainable Rangeland Management Project. IFAD report., at 12-13, further providing that the Village Land Use Planning process in Tanzania provides tools and space for women to participate fully and defend their interests.

56 Land Act, supra note 24, at §17(2).

57 Benschop, supra note 12, at 105.

58 Village Land Act, supra note 25, at §60(2), (9).

59 Id. at §53(2).

60 The Courts (Land Disputes Settlements) Act (2002), §11.

61 Id. at §14.

62 Id. at §26.

63 Local Customary Law (Declaration) (No. 4) Order, GN 436/1963. Hereafter [Local Customary Law].

64  Some specific parts of the CLDO have been superseded by statutory law, however. For example, section 9(3A) of the Law of Marriage Act of 1971 referring to the Judicature and Application of Laws Act excludes CLDO applicability to Islamic and Customary Law on issues provided for in the Law of Marriage Act.  Naseku Kisambu, Head-Research and Policy Department, Tanzanian Women Lawyers Association, e-mail correspondence on July 11, 2014, Head- Research and Publicity Department, TANZANIAN WOMEN LAWYERS ASSOCIATION. (on file with Landesa). It can also be argued that both the Constitution (provisions on gender equality) and Land Act implicitly supersede the Government Notices (and Islamic Law) on matters regarding inheritance. (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 the matter of land law, the Land Act prevails. §192.) However as a practical matter the courts continue to apply both the Government Notices and Islamic Law to inheritance cases. Naseku Kisambu, Written comments to draft guide report on April 14, 2014 (on file with Landesa).

65 Approximately 80 percent of Tanzania communities are considered patrilineal, though traditional matrilineal communities have increasingly transitioned to patrilineal custom as ethic intermarriage, migration, urbanization and other demographic changes become more prevalent. Matrilineal customs are less well known and rules are not codified in a similar way to the rules of patrilineal customs.  

66 Law of Marriage Act, supra note 23.

67 Benschop, supra note 12, at 124, citing Magdalena Rwebangira, Research Report No. 100: The Legal Status of Women and Poverty in Tanzania, Nordiska Afrikainstitutet (1996).

68 Law of Marriage Act, supra note 23, at §38.

69 Hunton & Williams. 2004. Customary and Islamic Law and its Future Development in Tanzania, Legalbrief Africa, Issue No. 107. http://www.legalbrief.co.za/article.php?story=20041128143334824; Benschop, supra note 12, at 125, footnote 447.

70 Law of Marriage Act, supra note 23.

71 Id. at §41, 43–55.

72 Ezer, supra note 20, at 625.

73 Law of Marriage Act, supra note 23, at §20.

74 Id. at §160.

75 Id. at §41.

76 Id. at §49–51.

77 Benschop, supra note 12, at 125.

78 Id. at footnote 450; Naseku Kisambu, Written comments to draft guide report on April 14, 2014, Head- Research and Publicity Department, Tanzanian Women Lawyers Association. (on file with Landesa).

79 Law of Marriage Act, supra note 23, at §56–58.

80 Id. at §56–63.

81 Note that the following section draws from Benschop, supra note 12, at 111–13.

82 Land Act, supra note 24, at §159(1).

83 Id. at §159(8).

84 Id. at §159(4).

85 Id. at §159(4)(a–c); Benschop, supra note ­­­­12, at 111.

86 Id. at §159.

87 Id. at §159(6).

88 Id. at §159(3)(b), (5).

89 Id. at §161(1), (2).

90 Id. at §160(1).

91 There appears to be a drafter’s error in Section 161(1). In addition, two different versions of the final Land Act  are circulating electronically, and interpretation of Section161(1) would in large part depend on which of the versions is the correct one. In this guide, authors have relied on the version of the Act available on the web site of Tanzania’s Ministry of Lands, Housing and Human Settlements (http://www.ardhi.go.tz/index.php?option=com_phocadownload&view=category&id=12:Lands%20Administration&Itemid=336). However, another version of the Act is available at web sites such as http://www.dlist-asclme.org/sites/default/files/doclib/view8.pdf. This version contains different text in Section 161(1) that would indicate drafters’ intent to establish a presumption that spouses hold land acquired during a marriage for the use and occupation of both spouses in joint tenancy rather than in tenancy in common. This would have very important and positive implications on women’s land rights, especially upon death of the husband. If there is any question whether this version is officially acceptable in Tanzania, practitioners could argue for application of a presumption of joint occupancy for spouses.  Compare §161(1) in version posted by Ministry of Lands, Housing and Human Settlements with that posted elsewhere. The Ministry version provides: “Where a spouse obtains land under a right of occupancy for the co-occupation and use of both spouses, or where there is more than one wife, all spouses, there shall be a presumption that, unless a provision in the certificate of occupancy or certificate of customary occupancy clearly states that one spouse is taking the right of occupancy in his or her name only or that the spouses are taking the land as occupiers in common, the spouses will hold the land as occupiers in common and, unless the presumption is rebutted in the manner stated in this subsection, the Registrar shall register the spouses as occupiers in common.  

In the Version of the Land Act posted elsewhere electronically, the final phrase of Section 161(1) provides: “the Registrar shall register the spouses as joint occupiers accordingly.” This change in the last provision would lead to a logistical interpretation of the Section in favor of presumed joint occupancy for spousal property.) 

92 Land Act, supra note 24, at § 161(2).

93 Id. at § 161(3).

94 Id. at §162.

95 Id. at §161(3).

96 Id. at 162(3)(e).

97 Id. at §162(3), (9)(e)(f)(i).

98 Id. at §112(3)(a).

99 Id. at §114(4), 138(2)(b).

100 Mortgage Financing (Special Provisions) Act, supra note 26, at §8.

101 Id., amending §114 of the Land Act.

102 Law of Marriage Act, supra note 23, at Part I (a).

103 Id. at §59(1).

104 Id. at §59(2).

105 Id.

106 Land Act, supra note 24, at §42(2)(f).

107 Village Land Act, supra note 25, at §35(2).

108 Id. at §35(7)(c)(i).

109 Id. at §36.

110 Id. at §45.

111 Land Act, supra note 24, at §93(2).

112 Id. at §108(1)(h)(iii).

113 Id. at §141, 142(1)(d)(ii).

114 Ezer, supra note 20, at 604; Benschop, supra note 12, at 134, citing Tanzania NGOs Shadow report on CEDAW, submitted to the CEDAW Committee in June 1998.

115 Id. at 603, citing the Law Reform Commission of Tanzania (1994).

116 Id. at footnote 26. “Customary law is codified in two Government Notices: GN 279 and GN 436, which only apply to certain districts and only cover patrilineal communities. Eighty percent of Tanzanian communities are patrilineal and the remaining twenty percent are matrilineal. LAW REFORM COMMISSION REPORT ON SUCCESSION/INHERITANCE, supra note 17, at 21.”

117 Id. at 607. These two tests are: “it is apparent, from the nature of any relevant act or transaction, manner of life or business, that the matter is . . . to be regulated otherwise than by customary law,” or “ that the deceased professed Islam or Christianity and “written or oral declarations . . . or his acts or manner of life [reveal] that he intended his estate to be administered (607).”  According to Ezer at footnote 33, “although this test is found in the section governing small estates, case law has extended its application to all estates. LAW REFORM COMMISSION REPORT ON SUCCESSION/INHERITANCE, supra note 17, at 28 (citing Re Estate of the late Suleman Kusundwa, [1965] E.A. 247).”.

118 Id. at 605.

119 Probate and Administration of Estates Act, § 88(1)(a), TANZ. LAWS [CAP 352, R.E. 2002].

120 Id. at §87(1).

121 Ezer, supra note20, at 618.

122 Id.

123 Indian Succession Act (1865).

124 Ezer, supra note 20, at 606–08; Benschop, supra note 12, at 127, citing to Magdalena Rwebangira, Research Report No. 100.

125 Id.

126 Indian Succession Act (1865), §26.

127 Id. at §27.

128 Id. at §43.

129 Id. at §28.

130 Land Act, supra note 24, at Part XII.

131 See Indian Succession Act (1865), Parts IV, V.

132 Benschop, supra note 12, at 132.

133 Id.

134 Id.

135 Id.

136 Hunton & Williams, supra note ­­69.

137 Constitution, supra note 28, at Art. 32(2).

138 Land Acquisition Act (1967), at §4(1)(a); Land Act (1999), at §4(1).

139 Land Act (1999), at §3.

140 Tenga & Kironde, supra note 13, at 57, 59 et seq. Under the Land Act, at § 3, the state must pay: (1) the market value of real property; (2) transport allowance; (3) loss of profits or accommodations; (4) cost of acquiring or getting subject land; (5) disturbance allowance; (6) any other cost, loss or capital expenditure incurred in development of land; (7) interest at market rate in the case of delays (defined as failure to pay within 6 months of valuation). See id. at 59.

141 Abdon Rwegasira, Land as a Human Right: A History of Land Law and Practice in Tanzania (2012) at 208.

142 J.M. Lusugga Kironde. 2009. Improving Land Sector Governance in Africa: the Case of Tanzania. Paper prepared for the Workshop on Land Governance in Support of the MDGs: Responding to New Challenges, Washington D.C., March 9-10, 2009.

143 Village Land Act, supra note 25, at §61(1), (2).

144 Id.

145 Land Act, supra note 24, at §167(1).

146 Benschop, supra note 12, at 128, citing to the Interpretation of Laws and General Clauses Act, 1972 (Cap. 1), §2(1).

147 Id.; Hunton & Williams, supra note 69; Carpano, supra note ­55, at 8.

148 Benschop, supra note 12, at 128.

149 Ikdahl, supra note 9, at 39.

150 Ezer, supra note 20, at 614.

151 Benschop, supra note 12, at 128, citing GN 463/1963 (Tanz.). An estimated 80 percent of Tanzanian communities follow patrilineal marriage customs, with 20 percent following matrilineal customs. Ikdahl, supra note 9, at 39, footnote 55. Matrilineal custom in Tanzania are not generally well-known. There is a gradual transition to from matrilineal to patrilineal tradition over time. (Benschop, at 128 and 131.)

152 Ikdahl, supra note 9, at 40.

153 Kefa M. Otiso, Culture and Customs of Tanzania (Greenwood 2013). at 146.

154 Omari, C.K., The Family in Tanzania, 21 International Journal of Sociology of the Family (1991) at 55, 61.

155 Magdalena Rwebangira, Research Report No. 100: The Legal Status of Women and Poverty in Tanzania, Nordiska Afrikainstitutet (1996).

156 Rita Liljeström et al., The Pubescent Girl: Past and Present. Chelewa, Chelewa: The Dilemma of Teenage Girls (Zubeida Tumbo-Masabo & Rita Liljeström ed., 1994) at 35.

157 Islamic Family Law in a Changing World: A Global Resource Book (Abdullahi A An-Na’im ed., Zed Books Ltd 2002) at 47-48.

158 Id.

159 Benschop, supra note 12, at 128.

160 Magdalena Rwebangira & M.C. Mukogoye, The Law of Inheritance in Tanzania: A Status Report (1995).

161 Stephane Dondeyne et al., Changing Land Tenure Regimes in a Matrilineal Village of South Eastern Tanzania, J. of Soc. Dev. in Afr., Jan. 2003. [pdf on file with Landesa]

162 Benschop, supra note 12, at 126.

163 Id.

164 See generally Law of Marriage Act, supra note 23; Land Act, supra note 24.

165 Id.

166 Yefred Myenzi. 2009. Women Land Rights in Tanzania. Paper prepared by HAKIARDHI for presentation at the workshop organized by Mzumbe University DSM Campus, Jan. 10, 2009.

167 Ezer, supra note 20, at 402; Benschop, supra note 12, at 133.

168 Id. The case challenges the Haya traditional inheritance practices, as reflected in Customary Law Declaration Order on inheritance (1963), para. 20. (“Women can inherit, except for clan land, which they may receive in usufruct but may not sell.”) Ephraim v Pastory (2001) AHRLR 236 (TzHC 1990), High Court of Tanzania at Mwanza, 22 February 1990 (Civil Appeal no 70 of 1989).

169 Marjorie J. Mbilinyi, The State of Women in Tanzania, 6 Can. J. Afr. Stud. (2013) at 371, 372.

170 Amanda Ellis et al., Gender and Economic Growth in Tanzania: Creating Opportunities for Women (2007) at 53. 

171 Id.

172 Id.

173 Local Customary Law, supra note 63, at Schedule 2.

174 Id.

175 Id.

176 Kempster, Erin. Focus on Land in Africa Brief, Tanzania: Gender and Land Rights Debate in Tanzania, Landesa (August 2011).

177 Id.

178 Local Customary Law, supra note 63, at Schedule 2.

179 Id.;  Benschop, supra note 12, at 129.

180 Id.

181 Ezer, supra note 20, at 610–11.

182 Local Customary Law, supra note 63, at Rule 77(1).

183 Benschop, supra note 12, at 129.

184 Id. at 610.

185 Local Customary Law, supra note 63; Ezer, supra note 20, at 612–14; Benschop, supra note 12, at 128, citing Magdalena Rwebangira & M.C. Mukogoye, The Law of Inheritance in Tanzania: A Status Report (1995).

186 Ezer, supra note 20, at 612–14.

187 Benschop, supra note 12, at 129, citing Local Customary Law (Declaration) (No.4) Order of 1963, Rule 27.

188 Id.

189 Ezer, supra note 20, at 610–12; Benschop, supra note 12, at 128, citing Local Customary Law (Declaration) Order, Rule 20.

190 Ephraim v Pastory, supra note 168; Benschop, supra note 12, at 128.

191 Id.

192 National Land Policy (1995); Law Reform Commission Report on Inheritance (1995); Ezer, supra note 20, at 606; Benschop, supra note 12, at 129.

193 Ezer, supra note 20, at 609, citing to GN 436, note 2, R. 27.

194 Id. at 631, citing the Law Reform Commission Report on Inheritance, at 29.

195 Id. at 617-21.

196 Id. at 620.

197 Id.

198 Benschop, supra note 12, at 133.

199 Id., citing Rwebangira & Mukogoye, at 20.

200 Id., citing Judge J.L. Mwalusanya.

201 Id.

202 Village Land Act, supra note 25, at §20(1).