' Bina Agarwal, "Gender, Property and Land Rights: Bridging a Critical Gap in Economic Analysis and Policy", in Kelly D. Askin and Dorean M. Koenig (eds.), Women and lnternational Human Rights Law (New York: Transnational Publishers Inc., 1999), pp. 845-872, at p. 845. 2 Ibid. 3 Ibid. 4 United Nations Commission on Human Rights resolution 1991/19, 1 March 1991, Respect for the Right of Everyone to Own Property Alone as well as in Association with Others. This document calls for additional efforts in the setting of standard and demands the protection of private property rights within human rights. 5 Katarina Tomaševski, Women and Human Rights (London: Zed Books Ltd., 1993), p. 36. 6 UNDP, (United Nations Development Programme), Human Development Report 1995: Gender and Human Development (New York: UNDP, 1995), p. iii.
' In Sub-Saharan African, women contribute from 60 to 80 percent ofthe labour both in food production for household consumption and for sale. This is apparent from a global study carried out by the Food and Agriculture Organisation (FAO), "Gender and Food Security, Synthesis Report of Regional Documents: Africa, Asia and Pacific", available at: http://www.fao.org/DOCREP/xOI98e/xOI98eOO.httn. See also interview with Ms Marie Randriamamonjy, Director of FAO's Women in Development Service, available at: http://www.fao.org/ news/1997/970304-e.htm. ' Mignon Senders, "Women and the Right to Adequate Housing", Netherlands Quarterly of Human Rights, Vol. 16, No. 2 (1998), pp. 175-200, at p. 182. 9 Rhoda E. Howard, "Women's Rights and the Rightto Development", in Julie Peters andAndrea Wolper (eds.), Women's Rights Human Rights (New York: Routledge, 1995), pp. 301-317, at p. 305. '° Lisa Bennett, "Women, Law and Property in the Developing World", Human Rights Quarterly, Vol. 3, No. 2 (1981), pp. 88-96, at p. 80. " Marsha A. Freeman, "The Human Rights of Women in the Family: Issues and Recommendations for Implementation ofthe Women's Convention", in Julie Peters and Andrea Wolper (eds.), Women's Rights Human Rights (New York: Routledge, 1995), pp. 149-167, at p. 151. Historically, in the common law and in European legal systems, legal capacity has been denied to children, mentally impaired and women. Women have been viewed legally as minors on the basis of gender alone. In the last hundred years, many countries have formally recognised women's legal capacity, though male consent is still required in many states for transactions such as loans. 12 Martha Nussbaum, "Women's Capabilities and Social Justice", in Maxine Molyneux and Shahra Razavi (eds.), Gender Justice, Development and Rights (New York: Oxford University Press, 2002), pp. 45-78, at p. 53.
" Universal Declaration of Human Rights, General Assembly resolution 217A(III), adopted 10 December 1948. 14 Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979, entry into force 3 September 1981, 1249 UNTS 13. 'S International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entry into force 3 January 1976, 999 UNTS 3. '6 International Covenant on Civil and Political Rights, adopted 16 December 1966, entry into force 23 March 1976, 999 UNTS 171. 1. " African Charter on Human and Peoples' Rights, adopted 26 June 1981, entry into force 21 October 1986, 21 ILM 59 (1982). 'B Tanzania formed a German East Africa protectorate in the late nineteenth century, and it was under British mandate after World War I and later under UN trusteeship. Zanzibar was a British protectorate from 1890. Tanzania and Zanzibar achieved independence in 1961 and 1963, respectively, and unified as the United Republic of Tanzania in 1964. They have separate legislative, judicial and executive institutions. This article deals specifically with Mainland Tanzania, hereinafter Tanzania.
" TomaSevski, supra (note 5), p. 35. 20 Ibid. 21 Nussbaum, supra (note 12), p. 54. ZZ Bina Agarwal, A Field of One's Own (Cambridge: Cambridge University Press, 1994), pp. 12-13. " Anja Lindroos, The Right to Development, The Erik Castrdn Institute oflntemational Law and Human Rights Research Reports 2/1999 (Helsinki: Faculty of Law, University of Helsinki, 1999), p. 56. 24 Eirik Lindstrom, Human Rights and Rural Women's Land Rights: An Analysis of the Land Tenure System and the Land Reform in Tanzania (Oslo: Oslo University Press, 2001), p. 57.
2S Vienna Declaration and Programme ofAction 1993, UN doc. A/CONF.157/23, para. 18 and Beijing Declaration and Platform for Action 1995, UN doc. A/CONF.177/20, paras. 13, 15, 16 and 19. 16 Lindroos, supra (note 23), p. 58. " Agarwal, supra (note 1), p. 851. 1. Z° Agarwal, supra (note 22), p. 30. 29 Agarwal, supra (note 1), p. 854. 30 Ambreena Manji, "Who's Afraid of Land Rights? Women, AIDS and Land Reform in Tanzania", in Ingunn Ikdahl (ed.), Gender and the Land Question, Working papers in women's law No. 49 (Oslo: University of Oslo, Institute of Women's Law, 1999), pp. 3-21, at p. 15.
" Agarwal, supra (note 22), p. 27. 32 bid, p .27. 33 Manji, supra (note 30), p. 16. u Agarwal, supra (note 1), p. 858. 35 International Land Coalition 2003: Towards a Common Platform on Access to Land. The report is available at: http://www.landcoalition.org. 11 Agarwal, supra (note 22), p. 36. The Grameen Bank in Bangladesh, a non-governmental credit institution, has given special preference to female household members in providing credit. " Declaration on the Right to Development, adopted by General Assembly resolution 41/128 of 4 December 1986, Article 8( 1). See also Margot E. Salomon, "The Nature of a Right: The Right to a Process in the Right to Development", in Franciscans International (eds.), The Right to Development, Reflections on the First Four Reports of the Independent Expert on the Right to Development Dr. Arjun Sengupta (Geneva: Franciscans International, 2003), pp. 82-104, at p. 93.
31 Agarwal, supra (note 22), p. 39. " International Land Coalition, supra (note 35). °o Agarwal, supra (note 22), p. 39. " Agarwal, supra (note 1), p. 860. °' Manji, supra (note 30), p. 11. On the issue of women's bargaining power, see also Amartya Sen, "Economics and the Family", Asian Development Review, Vol. 1 (1983), pp. 14-26, and Agarwal, supra (note 22), p. 54. 43 Agarwal, supra (note 1), p. 861. 44 Tomasevski, supra (note 5), p. 24. as Julie Mertus, "State Discriminatory Family Law and Customary Abuses", in Julie Peters and Andrea Wolper (eds.), Women's Rights, Human Rights (New York: Routtedge, 1995), pp. 135-149, at p. 136.
46 women Rights roland, HousingandProperry inPost-Conflict Situation and during Reconstruction: A Global Overview (Nairobi: United Nations Centre for Human Settlements, Land management series No. 9, 1999), p. 19. "Ibid. °e Mertus, supra (note 45), p. 135. 49 Ibid., p. 136. freeman, supra (note 11 p. 149. 51 patricia Kameri-Mbote, "Gender Considerations in Constitution-Making: Engendering Women's Rights in the Legal Process", (to be published in University of Nairobi Law Journal 2003, now available at: http://www.ietrc.org/Content/A03031P.pdf), pp. 16-17. 52 Tom Bennett, Human Rights and African Customary Law (Capetown: Juta & Co Ltd, 1995), p. 5. s' Ibid. The model household would thus include a man, his wife, their children, his unmarried brothers and sisters, possibly his parents and any other kin or others attached to him. 54 Costa Ricky Mahalu, "Africa and Human Rights", in Philip Kunig (ed.), Regional Protection ofHuman Rights by International Law: The Emerging African System (Baden-Baden: Nomos Verlagsgesellschaft, 1985), pp. 1-24, at p. 3. After colonisation, the Western idea of individual rights spread. According to the Western thinking, each person is seen as an abstract entity that is protected by rights opposable against the group.
"Alice Armstrong, Chaloka Beyani, ChumaHimonga, Janet Kabeberi-Macharia, Athaliah Molokomme, Welshman Ncube, Thandabantu Nhlapo, Bart Rwezaura and Julie Stewart, "Uncovering Reality: Excavating Women's Rights in African Family Law", International Journal of Law and the Family, Vol. 7 (1993), pp. 314-369, at pp. 362-363. sb Bennett, supra (note 52), p. 60. He means thereby that customary laws should be categorised to living customary law and official customary law. The living version could then be relied upon, since it refers to the sort of law actually observed by African communities, whereas the official version is the corpus of rules used by the legal profession. The latter should be treated cautiously, for it might not possess a genuine social basis with no support in the community. " Ibid, p. 61. 1. 58 Armstrong et al., supra (note 55), p. 363.
5. Adetoun Ilumoka, "African Women's Economic, Social and Cultural Rights", in Rebecca Cook (ed.), Human Rights ofWomen (Philadelphia: University ofPennsylvania Press,1994), pp. 307-326, atpp. 314 and 316. Although the constitutions of many African states affirm the principle of non-discrimination based on sex, other rules of law may still be discriminatory towards women. �°EvelynAnkumah,TheAfricanCommissiononHumanandPeoples'Rights: Practices and Procedures (The Hague: Martinus Nijhoff Publishers, 1996), p. 153. " Armstrong et al., supra (note 55), p. 322. s� Ibid, 6J lbid
64 Agarwal, supra (note 22), p. 19. "Ibid. 66 Catarina Krause, Riitten till egendom som en mfinsklig r6ttighet [The Right to Property as a Human Right] (Turku/Abo: Institutet Or manskliga rattigheter vid Abc Akademi, 1993), p. 73. 67 Allan Rosas, "Property Rights", in Allan Rosas and Jan Helgesen (eds.), The Strength afDiversity (The Hague: Martinus Nijhoff Publishers, 1992), pp. 133-159, at p. 133. 68 Ibid., p. 145. The question here is whether the right to property is a civil and political right or a right of economic and social character. In the UDHR, it is listed among civil and political rights, while in the African Charter on Human and Peoples' Rights it is between the two categories of rights. 69 Ibid.., p. 146.
'° Although the right to property protects, first and foremost, such property which has been already acquired, and it could thus be argued that this right is opposed to the nature of social rights more concerned with equal distribution of wealth, the right to property can also be interpreted in a more general way as contributing to an adequate standard of living which is in conformity with social rights. See Krause, supra (note 66), p. 9 and also Catarina Krause, "The Right to Property", in Asbjurn Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd rev. ed. (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 191-2 11, at p.191. The right to property is recognised in several regional human rights conventions: see section "The Right to Land and Property"- " According to Article 16 ofthe UDHR, women should be treated equally with men both during marriage and at the time of its dissolution. " Articles 15 and 16 deal with the issues of legal capacity and family relations, especially marriage, respectively. General Recommendation No. 21, thirteenth session (1994, on equality in marriage and family relations, Report of the Committee on the Elimination of Discrimination against Women, UN doc. A/49/38, pp. 1-10. 11 Ibid, para. 7.
74 This issue has been discussed by the Human Rights Committee in the case of Graciela Ato del Avellanal v. Peru (Communication No. 202/1986), Views adopted 28 October 1988, Report of the Human Rights Committee, UN doc. A/44/40, pp. 196-199, at p. 196. The case involved a married woman who could not represent her own property in court due to her gender. "General Comment 28(68), 2000, on equality ofrights between men and women, Report ofthe Human Rights Committee, Vol. 1, UN doc. A/55/40, pp. 133-139. '6 Article 16 of the ICCPR reads: "Everyone shall have the right to recognition everywhere as a person before the law". According to the Human Rights Committee, this right is especially important for women and it implies that women's capacity to own property should not be restricted on discriminatory grounds. General Comment 28(68), supra (note 75). " Article 40(1) of the 1CCPR obliges States Parties to submit reports on the measures they have taken regarding the rights mentioned in the Covenant. Tanzania acceded to the ICCPR on 11 June 1976. 'B Human Rights Committee, Concluding observations on the United Republic of Tanzania, UN doc. CCPR/C/79/Add.97, para. 12. '9 General Recommendation No. 21, supra (note 72), paras. 28-29. .0Ibid., paras. 30-33.
" The right to property is provided for in Article 1 of Additional Protocol No. 1 to the European Convention on Human Rights. Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention, adopted 20 March 1952, entry into force 18 May 1954, ETS No. 151. 1. 82 Joseph Oloka-Onyango, "Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa", California Western International LawJournal, Vol. 26, No. I (1995), pp. 1-98, at p. 69. Oloka- Onyango points outthe possibilities offered by the provision for defeating customary practices that deprive women from enjoying the right to property and the right to inheritance. At the same time, however, he is conscious ofthe fact that the African Charter makes no real attempt to re-interpret this right as a tool of empowerment and equality. " Ibid., p. 69. *" Fatsah Ouguergouz, The African Charter on Human and Peoples' Rights (The Hague: Martinus NijhoffPublishers, 2003), p.152. The draft version ofthe article states: "Where the right to property is guaranteed by state legislation, it may only be encroached upon in the interest of public need or in the general interest of the community". " Article 14 of the African Charter does not provide for financial compensation in case the property in encroached upon.
es This is visible, amongst others, in Article 1 (3) ofthe United Nations Charter, Article 26 of the ICCPR, and Article 3 of the African Charter. 87 General Comment 18(37), 1989, on non-discrimination, Report ofthe Human Rights Committee, Vol. 1, UN doc. A/45/40, pp. 173-175, para. 12. See also Florence Butegwa, "Using the African Charter on Human and Peoples' Rights to Secure Women's Access to Land in Africa", in Rebecca Cook (ed.), Human Rights of Women (Philadelphia: University of Pennsylvania Press, 1994), pp. 495-515, at p. 499. B8 General Comment 18(37), supra (note 87), para. 12. es General Comment 19(39), 1990, on the protection of the family, the right to marry and the equality of the spouses, Report of the Human Rights Committee, Vol. 1, UN doc. A/45/40, pp. 175-177, para.8. The administration of assets could be interpreted to include property and land matters. 90 General Comment 18(37), supra (note 87), para. I.
" International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 December 1965, entry into force 4 January 1969, 660 UNTS 195, Article 1. " Butegwa, supra (note 87), p. 500. 9' Maria Harti, "Rural Women's Access to Land and Property in Selected Countries: Analysis Based on Initial and Periodic Reports to CEDAW Committee 1997-2003" (FAO/IFAD, 2003), p. 6. Available at: http://www.fao.org/sd/2003/PE070033a en.htm. '° Rebecca Cook, "State Accountability under the Convention on the Elimination of All Forms of Discrimination against Women", in Rebecca Cook (ed.), Human Rights of Women (Philadelphia: University of Pennsylvania Press, 1994), pp. 228-257, at p. 234.
95 Claude Welch, "Protecting Human Rights and African Women", Human Rights Quarterly, Vol. 15, No. 3 (1993), pp. 549-574, at p. 554. 96 General Comment 28(68), supra (note 75), para. 5. " General Recommendation No. 21, supra (note 72), para. 30. 9e Ibid, para. 35. " Fayeeza Kathree, "Convention on the Elimination of Discrimination against Women and Economic Development", in Nico Steytler (ed.), Democracy, Human Rights and Economic Development in South Africa (Johannesburg: Lex Patria Publishers, 1997), pp. 49-92, at p. 82. '°° General Recommendation No. 21, supra (note 72), para. 3.
101 Article 2(f) ofthe CEDAW calls for states to take measures including legislation, to abolish or modify such laws, regulations, customs and practices which constitute discrimination. 102 Cook, supra (note 94), p. 240. according to Article 15(1) ofthe CEDAW, "States Parties shall accord to women equality with men before the law". Article 15(2) prescribes that "States Parties shall accord to women, in civil matters, a legal capacity identical to that of men ... In particular, they shall give women equal rights to conclude contracts and to administer property". 104 Article 16(h) of the CEDAW reads: "The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property". Article 16(c) ensures that women and men shall have the same rights and duties during marriage and at its dissolution: this could be interpreted to include inheritance rights when a marriage is terminated. zoos General Recommendation No. 21, supra (note 72), paras. 11-12.
zoos Robert Kisanga, "Fundamental Rights and Freedoms in Africa: The Work ofthe African Commission on Human and Peoples' Rights", in Chris Maina Peter and Ibrahim Hamisi Juma (eds.), Fundamental Rights and Freedoms in Tanzania (Dar es Salaam: Mkuki Na Nyota Publishers, 1998), pp. 25-37, at p. 27. 107 ibis, p. 29. ioeCarlsonAnyangwe, "Obligations of States Parties to the African Charter on Human and Peoples' Rights", African Journal of International and Comparative Law, Vol. 10 (1998), pp. 625-659, at p. 646. 109 Ibid. "° According to Article 18(3) of the African Charter, states must follow the stipulations of intemational conventions and declarations. I Chaloka Beyani, "Toward a More Effective Guarantee of Women's Rights in the African Human Rights System", in Rebecca Cook (ed.), Human Rights of Women (Philadelphia: University of Pennsylvania Press, 1994), pp. 285-307, at p. 292. See also Lindstrbm, supra (note 24), p. 43.
"2 Chidi Odinkalu, "Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples' Rights", in Malcolm Evans and Rachel Murray (eds.), The African Charter on Human and Peoples' Rights: The System in Practice (Cambridge: Cambridge University Press, 2002), pp. 178-219, at p. 193. 113 Ouguergouz, supra (note 84), pp. 192-193. 114 Ibid
"S Anyangwe, supra (note 108), p. 645. 116 Butegwa, supra (note 87), p.501. I. '" The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa was adopted and submitted for consideration to the African Union in 2001 after a meeting of experts representing 44 African states in Addis Ababa, Ethiopia. The Protocol will come into force after 15 ratifications (so far there are none). CAB/LEG/23.18. Hereinafter the African Protocol. "8 Article 6 ofthe Protocol, dealing with marriage, stipulates that States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. "' According to Article 19(c), States Parties should promote women's access to and control overproductive resources such as land and guarantee their right to property. '2° Article 21 of the Protocol guarantees the right of widows to inherit an equal share of the deceased husband's property, as well as the right to continue living in the matrimonial home. Paragraph 2 of the article relates to inheritance in more general terms, as it stipulates that women and men should be entitled to inheritance after their parents in equitable shares. This provision is very much needed in the African context, where women are, as has been noted previously, sometimes regarded as minors and even as property, instead of being able to exercise their right as equal heirs.
121 Law of Marriage Act 1971, section 56. ' Law of Marriage Act 1971, section 114 (b): "Court shall have regard to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets" (emphasis added). 123 Magdalena Sepulveda, The Nature ofthe Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen: Intersentia, 2003), p. 215. 124 Ibid., p. 307. �'s Lindström, supra (note 24), p. 15.
'2b Beyani, supra (note 111), p. 300. See also Lindström, supra (note 24), p. 15. 127 Sepulveda, supra (note 123), p. 408. See also Committee on Economic, Social and Cultural Rights, Concluding observations on Morocco, UN doc. E/C.12/1/Add.55, para. 40, and the Committee's Concluding observations on Senegal, UN doc. E/C.12/1/Add.62, para. 15. In both cases, the Committee expressed its concern over the de jacto inequality between men and women in land issues. "8 Sepulveda, supra (note 123), p. 409. The Committee on Economic, Social and Cultural Rights explained this in terms ofthe implementation ofthe right to food in its General Comment No. 12, twentieth session 1999, Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/2000/22, pp. 102-110, para. 26: "[T]his should include: guarantees of full and equal access to economic resources, particularly for women, including the right to inheritance and the ownership of land and other property, credit". "' Tanzania ratified the CEDAW on 20 August 1985. CEDAW Committee, Concluding observations on the United Republic of Tanzania, UN doc. CEDAW/C/1998/II/L.l/Add.5. "° Concluding observations on the United Republic of Tanzania, supra (note 129), para. 20. The inclusion of sex as grounds for discrimination occurred in the thirteenth amendment of the constitution in 2000. 131Ibid, para. 22. 132 bid, para. 23.
133 Concluding observations on the United Republic of Tanzania, supra (note 129), para. 30. 134 Butegwa, supra (note 87), p. 503. Unfortunately, the Preamble of the Charter is not legally binding. '" The Constitution ofthe United Republic ofTanzania, 1977, incorporating all amendments until 2000, Preamble of the Constitution, foundations of the Constitution, p. 13. The present constitution of Tanzania was adopted in 1977 and it has been amended several times since. The constitution did not originally include a Bill of Rights but such a Bill was added subsequently, through the fifth amendment of the constitution in 1985. The constitution has been amended 13 times, the latest amendment being rendered in April 2000. "" Mahalu, supra (note 54), p. 12.
137 Article 13(1): "All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law." 138 Marjolein Benschop, Rights and Realiry: Are Women's Equal Rights to Land, Housing and Properly Implemented in East Africa,? (Nairobi: United Nations Human Settlement Progamme, 2002), p. 103. 139 Magdalena Rwebangira, The Legal Status of Women and Poverty in Tanzania, The Scandinavian Institute of African Studies, Research report No. 100 (Motala: Motala Grafiska, 1996), p. 31. 1.
140 Bennett, supra (note 52), p. 6. Every person was expected to work for the good ofthe family: land was to be used for the needs of the family rather than the needs of individuals. 141 Lindstr6m, supra (note 24), p. 58. 142 Benedict Nangoro, "Branding the Land: Maasai Responses to Resource Tenure Insecurity and Social Change", in Frank Horn (ed.), Economic, Social and Cultural Rights of the Maasai (Rovaniemi: Lapland's University Press, 1998), pp. 15-94, at p. 36. 143 Ibid., p. 38. The Land Ordinance, 1923, Ordinance No. 3 of 1923 to defme and regulate the tenure of land within the territory. 144 Ibid. 145 R. W. James and Gamaliel Mgongo Fimbo, Customary Land Laws ofTanzania (Dar es Salaam: East African Literature Bureau, 1973), p. 34. '°6 The Village Land Act; an Act to provide for the management and administration of land in villages, and for related matters, Act No. 5 of 1999. The Land Act, Act No. 4 of 1999; an Act to provide for the basic law in relation to land other than village land, the management of land, settlement ofdisputes and related matters. Both of these Acts were passed in the Tanzanian National Assembly on 11 February 1999. 147 My Land: Tanzanian Women's Perspective on Secure Tenure, available at: http://www.wat.kabissa. org/myland.htm. 14' The Local Customary Law Declaration Order of 1963, Government Notice No. 436, 1963.
'°9 The National Land Policy, 1999, The Ministry of Lands and Human Settlements, Dar es Salaam, Tanzania. 150 Rwebangira, supra (note 139), p. 25. the Law Reform Commission of Tanzania, The Law of Succession/Inheritance Report 2000. The report is available at: http://www.trct.tz.org/mirathi.pd£ 152 Rwebangira, supra (note 139), p. 25. Patrilineal communities constitute 80 percent of Tanzania's ethnic formations, and the remaining 20 percent are matrilineal communities in which there is also a male inheritance system in place. 113 Butegwa, supra (note 87), p. 495. 's° Lindstr6m, supra (note 24), p. 103. iss The Land Ordinance, 1923, Ordinance No. 3 of 1923 to define and regulate the tenure of land within the territory.
156 The Village Land Act 1999, Part II, section 3 and The Land Act 1999, Part II, section 3. 157 The Land Act 1999, Part II, section 3.1: "The fundamental principles of National Land Policy which is the objective of this Act to promote and to which all persons exercising powers under, applying or interpreting this Act are to have regard to". The same sentence can be found from the Village Land Act 1999, Part II, section 3.1. 151 The National Land Policy 1999, paras. 2.1 and 4.2.4. 159 Benschop, supra (note 138), p.106; The National Land Policy 1999, para. 2.2. 160Benschop, supra (note 138), p. 107. 161 The National Land Policy, para. 4.2.6: "However, inheritance of clan land will continue to be governed by custom and tradition provided such custom and tradition is not contrary to the Constitution and is not repugnant to principles of natural justice". isz Rwebangira, supra (note 139), p. 31. 1. '6' Article 13(3) of the African Charter states: "Every individual shall have the right of access to public property and services in strict equality of all persons before the law" 'o" Odinkalu, supra (note 112), p. 191. 1.
ibsButegwa, supra (note 87), p. 495. 166 Rwebangira, supra (note 139), p. 25. '6' The Land Act of 1999 recognises the concept of joint occupancy in Part XII, section 159. Joint occupancy is important for women, because it gives them the opportunity to have their share of the property and to get their name on the land document. Another important point is the fact that a spouse's work for the benefit of the land is to be valued as a contribution, through which the spouse gains an interest in the land in the nature of occupancy. This provision is most likely to benefit women. ibe The Village Land Act 1999, section 17(2) calls for a fair balance of men and women in the National Land Advisory Council, which advises and reviews the national legal framework. 169 Benschop, supra (note 138), p. 109.
170 Benschop, supra (note 138), p. 109. Most ofthe land in Tanzania is "village land". With the new Land Acts, the government chose to use the existing and well-established village governance machinery for land tenure administration and to solve local disputes concerning land. In the village councils, consisting of seven members of whom three must be women, the disputes are to be dissolved through mediation. The Village Land Act 1999, Part V, section 60(2). 171 Benschop, supra (note 138), p. 1) 1. "2 The Village Land Act 1999, Part IV, section 27(1)B. 173 The Village Land Act 1999, Part IV, section 27(1)A. "' The Land Act 1999, section 53. See also Benschop, supra (note 138), p. 110. "5 The Village Land Act 1999, section 3(1)C. 176 Lindstr6m, supra (note 24), p. 105. 177 Land Act and Village Land Act 1999, section 3(2). 178 Village Land Act 1999, section 20(2).
1 Rie Odgaard, "Scrambling for Land in Tanzania: Process ofFormalisation and Legitimisation ofLand Rights", The European Journal of Development Research, Vol. 14, No. 2 (2002), pp. 71-89, at p. 82. 180 Ibid181 Butegwa, supra (note 87), p. 498. 182 International Labour Organisation: Equal Employment Opportunities for Women and Men, available at: http://www.ilo.org/public/english/employment/gems/eeo/law/tanzania/lavla.htm. 113 The Land Act 1999, section 161(1): "Where a spouse obtains land under a right of occupancy for the co-occupation and use of both spouses or where thee 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 sub-section, the Registrar shall register the spouses as joint occupiers accordingly." "
ieaThe Land Act 1999, section 161(2). 185 law of Marriage Act, 1971, section 114. According to this provision, the contributions can include "money, property or work towards the acquiring of the assets" 186My Land, supra (note 147). 187 Benschop, supra (note 138), p. 124. 188 United Nations human rights system 1999, for the record: Tanzania. Available at: http://www.hri.ca/ fortherecord I 999/vol2/tanzaniarr.htin. 189 Rwebangira, supra (note 139), p. 14.
'9° Second schedule of the Law of Marriage Act, 1971, amended by the Judicature and Application of Laws Ordinance, Cap. 453. "Notwithstanding the provisions of this Act the rules of customary law and the rules of Islamic law shall not apply in regard to any matter provided for in the Law of Marriage Act, 1971." ." "' Section 60(a): "Where during the subsistence of a marriage, any property is acquired in the name of the husband or the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse". ' Section 114( 1 ): "The court shall have the power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts". "' Section 114(b): "Court shall have regard to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets". "a Benschop, supra (note 138), p. 125.
"' Benschop, supra (note 138), p. 126. 196 Rwebangira, supra (note 139), p. 24. Statutory law includes the Indian Succession Act of 1865, which can be seen as codified English common law. It is concerned with the deceased's immediate dependants; the children and the widow. It is argued that it is more equitable in its principles, since it does notjudge by gender, unlike customary and Islamic laws do. "' Butegwa, supra (note 87), p. 497. 198 Lindström, supra (note 24), p. 113. 199 Rwebangira, supra (note 139), p. 26. xoo Butegwa, supra (note 87), p. 496. "Marry the land away" refers to the fear that as daughters get married and become members of the clan and family oftheir husbands, the land they own will also be transferred over to that family and clan. 201 Rwebangira, supra (note 139), p. 25. x°x Benschop, supra (note 138), p. 128. 203 The Local Customary Law Declaration Order, rule 20 divides the heirs into three degrees. The first degree heir is the first son from the first house, the second degree heirs include all other sons, and the third degree heirs are then the daughters.
204 The Law Reform Commission of Tanzania, Inquiry and Report on the Law of Marriage Act, 1986, p. 12, section 3.3.3, available at: http://www.lrct-tz.org/marriage.pdf. 211 �bid, section 3.3.2. '°6 Ephrahim v. Pastory, High Court of Tanzania 1990, Civil Appeal No. 70 of 1989, LRC (Const.) 757. 207 Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (New York: Oxford University Press, 2000), p. 429. ioe Ibid.
'°' Marsha A. Freeman, "Women, Law and Land at the Local Level: Claiming Women's Human Rights in Domestic Legal Systems", Human Rights Quarterly, Vol. 16, No. 3 (1994), pp. 559-575, at p. 571. 210 TomaSevski, supra (note 5), p. 132. 2" Chris Maina Peter, "Enforcement of Fundamental Rights and Freedoms: The Case of Tanzania", Africans Yearbook of International Law, Vol. 3, No. I ( 1995), pp. 81-99, at p. 91. 1. 212 Ibid.
x" Agarwal, supra (note 22), p. 15.
214 The Law Reform Commission of Tanzania, supra (note 151). 2" The Law Reform Commission of Tanzania, supra (note 204).
�'6 Freeman, supra (note 209), p. 562. 2" Agarwal, supra (note 22), p. 39. 218 The United Nations Special Rapporteur on Economic, Social and Cultural rights Mr Danilo TUrk, Report of6 7uly 1990, UN doc. E/CN.4/Sub.2/1990/19, para.137(d). "Realization ofeconomic, social and cultural rights".