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                                           CHAPTER FOUR

                                           TANZANIA


4.1 Background and Introduction

T    anganyika was declared independent in 1961. In 1962, a “Republic Constitution” was
       adopted, making the country into a republic headed by a president. This Constitution did
not include a Bill of Rights.342 The Interim Union Constitution of 1964 (providing for the
Union between Tanganyika and Zanzibar forming Tanzania)343 was followed by an interim
constitution in 1965. In 1977, the current Constitution was promulgated and was amended
thirteen times since then.

The principles of the land tenure system, as established through the Land Ordinance of 1923,
were only slightly changed after independence.344 Until 1999, this Land Ordinance remained
the basic land tenure and land use law in Tanzania. A difference continued to exist between
customary land rights (or “deemed occupancy rights”) and statutory land rights (or “granted
occupancy rights”). Granted rights of occupancy (mostly held by the immigrants in colonial
times) were more clearly defined than “deemed or customary rights of occupancy” (which had
been seen as ‘public lands’ at the disposal of the colonial authorities), and constituted a
stronger legal status. It remained unclear what legal regime should be applied to land held
under different customary regimes.345

Tanganyika’s First Five Year Plan was partly based on a World Bank Report, which
recommended the integration of traditional peasants and pastoralists in the world capitalist
market through increasing production of cash crops for export. In order to achieve such
integration, resettlement of selected farmers in villages under supervision of Village
Settlement Commissions was suggested.346 Land tenure became increasingly individualised
and land tenure and land use systems were administered and managed from the top through
regulations, rules and by-laws. By 1966, the government acknowledged that both the village
settlement schemes and the range land projects had failed.347
342
    The reason given was that the country was not mature enough and that the developmental approach taken by
the state after independence could not work if human rights were guaranteed in the Constitution. Legal and
Human Rights Centre, Report of the NGO Coalition For Constitutional Change (NCCC) Workshop, Dar-es-
Salaam, October 1998, p. 12.
343
    This report examines the situation in Tanzania Mainland and does not include Zanzibar.
344
    For example, all lands to be declared public lands were now vested in the President instead of the
 Governor, freehold titles were abolished (by the Freehold Titles (Conversion) and Government Leases
Act 1963, Cap. 523, No. 24), and legislation against absentee landlords was adopted.
345
    Customary law was not developed as a body of jurisprudence by the courts and these questions continued to
be unanswered. H.W.O. Okoth Ogendo, Legislative Approaches to Customary Tenure and Tenure Reform in East
Africa, in: Toulmin, C. and Quan, J.F. (Eds) (2000), supra note 105, p. 126.
346
    World Bank, The Economic Development of Tanganyika, World Bank, 1961. This policy of village settlement
schemes was laid down in the Land Tenure (Village Settlements) Act, 1965 (No. 27), while provision for range
lands projects was made in the Ranger Development and Management Act, 1964 (No. 51).
347
    Reasons cited for their failure were that they were too capital intensive, and that they were managed in a top-
down fashion. Shivji (1998), supra note 129, p. 6.
100


In the Arusha Declaration of 1967, the policy of African socialism (ujamaa or brotherliness),
self-reliance and rural development was declared.348 The approach now chosen was to
develop the rural areas from scattered rural homesteads to nucleated “Ujamaa Villages”
(under the “Villagisation Programme”).349 Parallel to small-scale communal agriculture in the
Ujamaa Villages, large-scale agriculture and ranching under parastatals was pursued.350 Land
was nationalised351 and many of the granted occupancy right holders left the country. By
1973, villagisation became compulsory and through Operation Vijiji, the whole rural
population was supposed to have moved by the end of 1976.352 After Operation Vijiji, more
than 7,000 villages had been registered under the Villages and Ujamaa Villages (Registration,
Designation, Administration) Act, No. 21 of 1975.353 This Act provided for allocation of land
to a head or ‘kaya’ (a household or family unit); as household or family unit heads were
usually men, women’s lacked independent access to land.354 The application of this Act had a
particularly serious impact in the matrilineal societies; instead of land being controlled by the
maternal uncles and in some cases women, the land now came to be vested in men as
household or family head.355

Millions of peasants and pastoralists had been resettled in old or newly formed villages.
However, villages and villagers could often not obtain their land titles because of remaining
titles of departed occupancy right holders. Instead, many only had ‘squatter rights’. With the
liberalisation of trade, the former occupiers have come back, and many villagers have been
evicted from these farms.356

A programme of village demarcation, titling and registration was started in 1982. Village
Councils were granted rights of occupancy and villagers were in turn given leases from the
village rights of occupancy. This was however done without first clearing the existing
“deemed rights of occupancy” of villagers to village land. Thus, double allocations of land
occurred, leading to several problems and disputes. By mid 1991, it had become clear that
only a small percentage of these village lands had been surveyed, certified and registered.
These and other problems made the government abandon this programme by the mid-nineties,



348
    Ibid, p. 7.
349
    Ministry of Lands and Human Settlements, National Human Settlements Development Policy, Dar es Salaam,
2000, p. 11.
350
    Parastatals held nationalised land under rights of occupancy. More land, very often belonging to customary
holders in the villages, was alienated from them through government allocations on the ground of ‘public interest’
or ‘national project’. Shivji (1998), supra note 129, p. 9.
351
    Under the Land Acquisition Act of 1967 (No. 4). Land in Tanzania is publicly owned, and the President has the
radical or ultimate title. Customary landholders whose land was alienated were not provided with compensation.
352
    Shivji (1998), supra note 129, p. 12.
353
    This Act set up the Village Assembly (consisting of all adults in each village) and the elected Village Council of
some 25 members, a sub-committee of which dealt with land matters. The authority to administer land had already
been taken away from chiefs and clan elders under the African Chiefs Ordinance (Repeal) Act, no. 13 of 1963.
Under the Ujamaa Villages Act, the Village Assembly had very little power, while the Village Council was subject
to the over-arching powers of District Councils, District Commissioners and directions from the Minister of Lands.
In 1978, local government was reintroduced, the Act was repealed and its institutional provisions merged in the
Local Government (District Authorities) Act of 1982, No. 7. The legal framework for village land however
remained unclear.
354
    Tumaini Silaa, Beyond the Radical Title, A Research on Women’s Access to, Ownership and Control of Land in
Tanzania, p. 5, in: EASSI, Documenting Women’s Experiences in Access, Ownership and Control over Land in
Eastern African Sub-Region, Kampala, August 2001.
355
    Ibid, p. 25.
356
    Ministry of Lands, Housing and Urban Development, National Land Policy, Dar es Salaam, 1995, p. 20.
                                                                                                       101


when it adopted its National Land Policy.357 Based on this National Land Policy, two
comprehensive Land Acts were adopted in 1999, one of which relates to general (including
urban) land, while the other focuses solely on village land. These Acts will be described in
detail in this Chapter.

In the next Section, the current Constitution and efforts towards constitutional reform are
described. A short description of the local government system will follow. Subsequently, the
making and contents of the National Land Policy and the newly adopted Land Acts will be
discussed in detail, followed by a description of the National Human Settlements
Development Policy. Finally, after an examination of the different laws relating to women’s
inheritance rights, the activities of paralegal networks at grassroots level will be looked into.


4.2 The 1977 Constitution
The current Tanzanian Constitution was enacted by the Constituent Assembly in 1977, and
has since been amended thirteen times. The Bill of Rights that was incorporated in the
Constitution in 1988 is still relatively restricted; some aspects of it are not justiciable, or are
constrained due to community rights prevailing over the rights of the individual.358 In 1992,
the Constitution was amended to allow for a multi party democracy.359 Hopes were raised that
fundamental changes in the framework of governance would follow, in which the population,
including the less privileged vulnerable groups in society would acquire a new voice in the
management of their affairs and development.360 Several organisations and opposition parties
in Tanzania requested a participatory process for constitutional reform. The Government
issued a White Paper on constitutional reform in 1998, which contained 19 issues linked to
proposals for amendment.

After a two-day workshop in October 1998, an NGO Coalition (the Constitutional Coalition
on a New Constitution - CCNC) was founded. It comprised 18 NGOs and was co-ordinated
by the Legal and Human Rights Centre (LHRC).361 By 1999, NGO membership had risen to
31, and organisations from Uganda and Kenya also participated in its workshops. The CCNC
pushed for a more participatory process and for a more thorough reform than the 19 issues
listed in the White Paper. Those 19 issues did not touch on the issue of gender, nor did they
cover other concerns voiced by civil society.362

In its Declaration of the Citizens Coalition for a New Constitution of 29th October 1998, the
CCNC calls upon the Government of Tanzania to fully support a participatory process for
designing an engendered and non-discriminatory democratic constitution.363 The Government
appointed a Constitutional Commission (also called the “Kisanga Commission” after its
chairperson, Justice Kisanga), that started collecting people’s views on the White Paper. This
Commission consulted around 600,000 people and invited NGOs to submit their views.364

357
    Shivji (1998), supra note 129, p. 19-21.
358
    Legal and Human Rights Centre, (1998), supra note 342, p. 12.
359
    See Article 3(1): “The United Republic is a democratic and socialist state which adheres to multi-party
democracy.”
360
    Legal and Human Rights Centre, (1998), supra note 342, p. 3; and interview with Helen Kijio-Bisimba,
Chairperson CCNC and Executive Director of LHRC, Dar es Salaam, October 7, 1999.
361
    The workshop was funded by the Konrad Adenauer Stiftung.
362
    Legal and Human Rights Centre, (1998), supra note 342, p. 14.
363
    Ibid, Annex I.
364
    Interview with John Wallace, Legal Officer, LHRC, Dar es Salaam, March 5, 2001.
102


The CCNC also submitted their proposals to the Kisanga Commission. These proposals called
for extension of the short period allocated for discussion on the White Paper, and pushed for a
more participatory approach in the making of a new, democratic Constitution.365 With regard
to gender issues, the Coalition proposed that affirmative action should be expanded in the new
Constitution. It also proposed that the language of the Constitution should be made gender
sensitive, that women’s equal rights should be clearly spelled out, that discrimination on the
ground of sex should be clearly prohibited and that women’s right to participate in every
process of society should be recognised.366

The CCNC proceeded with undertaking a stakeholders analysis and needs assessments,
holding zonal workshops throughout Tanzania (including Zanzibar), organising a workshop
for paralegal members of the Women’s Legal Aid Centre from eight regions, and preparing
educational materials on constitutional reform.

When the amendments to the Constitution were debated in Parliament in January 2000, the
CCNC Chairperson together with the Head of the Faculty of Law of the University of Dar es
Salaam, presented NGO views on the proposed amendments. On February 4, 2000, the
Constitution was amended, but without taking into account several of CCNC’s concerns. Two
of the concerns regarding gender issues were however partly incorporated: the explicit
prohibition of discrimination on the ground of sex, and an increase, through affirmative
action, of the proportion of women MPs from 15% to 20% (the CCNC proposal had been
30%).367

4.2.1 Contents of the current Constitution
According to the Preamble, the foundations of the Constitution are: a democratic and socialist
society founded on the principles of freedom, justice, fraternity and concord which will ensure
that all human rights are preserved and protected and that the duties of every person are
faithfully discharged.

Under “Fundamental Objectives and Directive Principles of State Policy”, Article 9 states that




365
    This approach would entail the following process:
-    appointment of a National Constitutional Conference, with participants from all segments of the society, to
     enable all voices and interests to be heard and accommodated; this Conference should then agree on the
     basic constitutional structure and principles, and appoint a Constitutional Commission;
- appointment of a Constitutional Commission to collect and collate people’s views on the contents of the new
     Constitution, and prepare a draft Constitution;
- election of a Constituent Assembly, to discuss and adopt the Constitution;
- a national referendum in which people can decide whether to be bound by the Constitution or not. (Legal
     and Human Rights Centre, (1998), supra note 342, p. 9).
366
    Ibid, p. 15.
367
    See Article 13 and 66(1)(b) of the Constitution.
                                                                                                             103


However, Article 7(2) reminds the reader that




In other words, there is a “soft” obligation for the Government and its agencies to
progressively ensure equal opportunities for men and women, to uphold human dignity and to
eradicate discrimination, but this obligation, according to the Constitution, is not enforceable
in a court of law.

Part III of Chapter One deals with “Basic Rights and Duties”. Its first two articles, Article 12
and 13, deal with the right to equality. Article 12(1) states:


Article 13(1) then continues:




Article 13(5) defines discrimination:




“Sex” or “gender” as a basis of discrimination was included in this Article in 2000.368

Article 24(1) states that every person is entitled to own property. In its second clause, the
deprivation of a person’s property is declared unlawful unless authorised by law which makes
provision for fair and adequate compensation.

Article 29(2) stipulates that every person has the right to equal protection under the laws of
the United Republic, and Article 29(3) ensures that no citizen shall have a right, status or
special position on the basis of his lineage, tradition or descent.

Limitations on the human rights and freedoms, as set out in the Constitution, are listed in
Articles 30 and 31.369 According to Article 30(3)

368
    See Section 5 of the 13th Amendment of the Constitution Act, 2000. The Kiswahili text, which was only
available during the writing of this report, states “jinsia”, which means “gender”.
369
    Article 30(1) prohibits the exercise of human rights and freedoms by the individual if it causes “interference
with or curtailment of the rights and freedoms of other persons or of the public interest”. A list of purposes,
either included in existing legislation or enacted in future legislation, that take priority over the enjoyment of
human rights and freedoms is mentioned in Article 30(2). In addition to purposes as defence, public safety and
public order, which can be seen in many constitutions in the world, purposes like rural and urban development
planning, and laws “imposing restrictions, supervising and controlling the formation, management and activities
of private societies and organisations in the country”, or “enabling any other thing to be done which promotes,
or preserves the national interest in general” are listed, thus allowing for extensive limitation of the ‘human
rights and freedoms’.
104




The High Court, while deciding upon such a case, is given the power in Article 30(5) to

  (…)




While the law or action that violates someone’s rights is deemed to remain valid until an
amendment to it has been passed, nothing is said about remedies for the person claiming a
violation of his/her rights.

Article 66(1) deals with Members of the National Assembly or Parliament, and states under
(b) that 20% of the National Assembly Members should be women, elected by the political
parties represented in the National Assembly in terms of Article 78 on the basis of
proportional representation amongst those parties”.370 Article 78(1), explains in more detail
what procedures need to be followed for the election of the 20% of women Members of
Parliament:




Furthermore, Article 81 allows the Electoral Commission to make provisions specifying the
procedure to be followed by the political parties for the purposes of electing and proposing the
names of these women MPs.

Chapter Five then deals with the Judiciary of mainland Tanzania, with provisions on the High
Court (Article 108), the Court of Appeal (Article 117) and the special Constitutional Court
(Articles 125-126). No affirmative action with respect to candidate women judges is included
in this Chapter.

4.2.2 Conclusion
The current Tanzanian Constitution prohibits discrimination on the ground of sex. Unlike
Uganda’s Constitution, no specific article in the Constitution is devoted to land, although a
similar provision confirming the right of every person to own property is laid down in Article
24. Women’s equal right to property is implicitly recognised, but no mention is made of
customary laws inconsistent with that right or laws and customs blocking women’s equal right
to inheritance. The language in the Constitution is not gender-sensitive.



370
   This Article was also amended during the 13th amendment of the Constitution in 2000, and the original 15% was
increased to 20%.
                                                                                                            105


4.3          Local Government
Local government in Tanzania is divided into regions, districts, township authorities, wards
and villages.371 There are 25 regions, 112 districts and 9,000 villages.372 Every district and
township authority has a district council and township authority. Every village has a village
assembly and a village council.

In 2000, the Local Government (District Authorities) and Local Government (Urban
Authorities) Acts of 1982 were amended. These amendments have introduced affirmative
action for women’s representation in local government bodies: one-third of the members of
each District Council, one-fourth of the members of each Township Authority and one-fourth
of the members of each Village Council now have to be women.373 It is hoped that this
affirmative action will change the operation of village councils, which are known to allocate
land to household heads, who are usually men.374 Village assemblies are comprised of all
villagers above 18 years, both men and women. In practice, however, the men still dominate
these assemblies.375



                  VILLAGE COUNCIL

 15-20 members:
 (a) a Chairperson elected by the Village Assembly;
 (b) the Chairpersons of all the Vitongoji within the                                 VILLAGE ASSEMBLY
      village;
 (c) such other members to be elected by the village                                Every person who is
      assembly of whom not less than 1/4 of the total                               ordinarily resident in the
      number of all village council members shall be                                village and who has
      women                                                                         attained the apparent age
                                                                                    of 18 years




The Village Council is seen as 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 Assembly or a minimum of one hundred villagers can file a
complaint at the District Council about the way the Village Council is exercising its
management functions. The District Council then informs the Commissioner, and either tries
to settle the differences in the village, request the Commissioner to issue a directive to the
Village Council or recommend an inquiry to investigate the complaint.376



371
    The area of the village and/or township authority is divided into maximum five Vitongoji. Every Kitongoji has
a Chairperson who is elected by an electoral college consisting of all the adult members of the Kitongoji.
372
    The Guardian, January 28, 2001.
373
    See Sections 35(1)(c), 45(1)(e) and 56(1)(c) of the Local Government (District Authorities) Act of 1982, as
amended by amendment No. 4 of 2000. The Village Assemblies still consist of every person who is ordinarily
resident in the village and who has attained the apparent age of 18 years (Section 55).
374
    Toulmin, C. and Quan, J.F. (2000), supra note 105, p. 119.
375
    Silaa (2001), supra note 354, p. 9.
376
    See below under Village Land Act of 1999.
106


4.4 National policies and legislation on land and housing
The increase of human population, increased urbanisation, lack of clarity and security in land
tenure systems, conflicting interests in land due to the “villagisation” operations in the 1970s and
uncertainty in land rights, were some of the reasons why a comprehensive national land policy was
thought necessary. In 1995, a National Land Policy was adopted, which formed the point of
departure for the drafting of the Land Bill. There has been a range of legislation on land that was
either passed by the colonial administration or the government after independence. Some of these
laws have been repealed in 1999, when a new Land Act and a new Village Land Act were enacted.
In principle, the Land Act deals with general land (urban land and other land that is not reserved
land or village land), while the Village Land Act deals with village land (land where customary
tenure or “deemed” rights of occupancy generally apply). The National Land Policy of 1995, the
Land Act and Village Act of 1999 and the role of lobby groups are examined in this Section.

4.4.1 The 1995 National Land Policy
A Presidential Commission of Inquiry on Land Matters, chaired by Professor Shivji, was
established in 1991. This Commission conducted extensive investigations and held 277
meetings throughout the country to solicit people’s views on land reform. The ‘Shivji’ Report
that came out in 1993 generated very detailed analysis and proposals. Its main
recommendations to vest root title of most of the country’s land in the respective village
communities and to remove control over tenure administration from the executive into an
autonomous Land Commission did not gain sufficient government support377 ; those proposals
at odds with major political interests were shelved.378 Most other aspects were however
included in a position paper and the draft National Land Policy issued by the Ministry of
Lands, Housing and Urban Development in 1993. A public workshop on the Land Policy was
held in January 1995. Women’s organisations lobbied for inclusion of provisions ensuring
women’s equal access to land during and after this workshop. The National Land Policy
(NLP) was approved by Parliament in August 1995.379

The NLP covers a wide range of land related issues.380 One of its objectives is to promote an
equitable distribution of, and access to land by all citizens. Equal and equitable access to land
for all citizens is confirmed in policy statement 4.2.4 (i). Access to land in Tanzania by non-
citizens and foreign companies is severely restricted, in particular with regard to customary or
village land, in an effort to discourage acquisition of land for speculative purposes.381 The
NLP makes it clear that a dual system of tenure, which recognises both customary and
statutory rights of occupancy as equal in law will be established.382 Some of the conflicts that
existed between these two types of tenure arose due to expansion of existing towns and the
establishment of new towns. Existing customary land rights were presumed extinct once a
“declaration of planning areas” had been issued, even though no legal procedures that
formally extinguished such rights were in place. The NLP states that a declaration of planning
areas no longer automatically extinguishes customary rights, and that all interests on land
(including the customary land rights that exist in planning areas) shall be identified and

377
    Robin Palmer, Land Policy in Africa: Lessons from Recent Policy and Implementation Processes, in:
Toulmin, C. and Quan, J.F. (2000), supra note 105, p. 281.
378
    Toulmin, C. and Quan, J.F. (2000), supra note 105, p. 14.
379
    Ministry of Lands, Housing and Urban Development, National Land Policy , Dar es Salaam, 1995.
380
    Land Tenure, Land Administration (incl. allocation, (women’s) access to land, disposition, land values,
compensation, registration, dispute settlement and village titling), Surveys and Mapping, Urban and Rural Land
Use Planning, Land Use Management, and Institutional Framework.
381
    See paragraph 4.2.4 (ii), (iii) and (iv).
382
    Paragraph 4.1.1 (vi).
                                                                                                         107


recorded. It also recognises the land rights of peri-urban dwellers. 383 With regard to
unplanned urban settlements, the NLP recognises that more than 50% of urban residents in
Tanzania live in poor conditions in unplanned settlements, without access to basic services
and without security of tenure. Participatory upgrading, simplified building regulations and
affordable levels of services in low income housing areas are some of the policy statements
made about this issue.384

Paragraph 4.2.5 describes existing problems related to women’s equal access to land. It states:




The policy statement in paragraph 4.2.6 then continues:




After fierce lobbying by women’s organisations, the last sentence was changed into:




Now that the Constitution also includes the prohibition to discriminate on the ground of sex,
this provision can be used to counter customs and traditions that discriminate against women.
The second policy statement in paragraph 4.2.6 states: “Ownership of land between husband
and wife shall not be the subject of legislation.” This provision was included to prevent
‘family matters’ from becoming part of the National Land Policy.385 As can however be seen
in the next Section, spousal co-occupancy has been included in the Land Act.

4.4.2 The 1999 Land and Village Land Acts
The National Land Policy was the basis for the subsequent drafting of the Land Bill. A
support Committee under the Ministry of Land and Human Settlements Development386 made
a first draft. A consultant then drafted the Bill, during which internal discussions continued to
take place.387 In 1996, the Draft Land Bill was submitted to Government.388 The Committee
on Economic and Financial Affairs within the Ministry of Lands and Human Settlements
Development was the body that had to review the Land Bill.389

383
    Paragraphs 6.3.0 and 6.3.1
384
    Paragraphs 6.4.0 and 6.4.1
385
    According to the Ministry of Lands and Human Settlements; interview with Mr. Fidelis K. Mutakyamilwa,
Dar es Salaam, October 7, 1999.
386
    Other members of this Support Committee came from the Attorney-General’s office, the University of Dar es
Salaam and the Law Reform Commission. Interview with Mr. Fidelis K. Mutakyamilwa, in charge of Legal
Section, Ministry of Lands and Human Settlements Development, October 7, 1999, Dar es Salaam.
387
    This consultant was Professor McAuslan.
388
    Toulmin, C. and Quan, J.F. (2000), supra note 105, p. 14.
389
    Co-ordinator of the Women Advancement Trust (WAT), chairperson of HIC-WAS and MP, Mrs. Tabitha
Siwale, was member of this Committee.
108


Women’s role in the making of the Land Acts
The National Women’s Forum or “Baraza la Wanawake la Taifa” (BAWATA), an umbrella of
women’s organisations, started the lobby work to influence the Draft Land Bill in 1996. When
the Government suspended BAWATA’s activities in February 1997, the Tanzanian Women
Lawyer’s Association (TAWLA) took over the co-ordination of lobby activities. TAWLA
called a whole range of women’s groups and other organisations dealing with land together.
After a two-day workshop in March 1997, the Gender Land Task Force (GLTF) was formed.
GLTF’s objectives were: advocacy on desired gender progressive amendments to the Land
Bill and awareness raising throughout the country through booklets in Kiswahili and
workshops in the regions. Each of the eight member organisations covered different regions in
Tanzania and focused on their areas of expertise (law, media, education etc.).390 The first
phase of activities for GLTF was advocacy for a gender progressive Land Act. Drafters from
the Ministries of Justice and Land were invited to workshops and meetings. Officials from the
Ministry of Community Development, Women Affairs and Children were also invited.

Parallel to the GLTF, whose main focus was on gender issues, a National Land Forum
(NALAF) was formed in May 1997, led by Haki Ardhi. The focus of NALAF’s lobby work
was more on “progressive issues” such as the plight of the pastoralists, decentralisation,
radical title of land to be vested in the people of Tanzania and freehold tenure. However,
members of both the Forum and the Task Force often overlapped. In May 1998, the two
merged and became known as the “Land Coalition”, although they maintained two separate
Secretariats.

The Land Bills were published in November 1998 and the second phase began, during which
lobbying activities were crucial.391 At national level, the GLTF identified allies among the MPs
and lobbied them as a point of entry for sensitising other MPs. A total of 75 allies in Parliament
were identified. Workshops for the MPs in the Committee on Economic and Financial Affairs
and later on, for all MPs, were held, funded by CIDA. The drafter of the draft Land Bills and
the Commissioner of Lands were also lobbied intensively. Many pamphlets and handouts were
produced and disseminated. In January 1999, the Bill was debated in Parliament, and GLTF’s
and NALAF’s activities in Dodoma reached their height. Differences of opinion on strategy and
approach however caused a division between the Forum and the Task Force. The GLTF feared
that the concerns on women’s equal rights would become too invisible if all the issues were
lobbied for, whereas NALAF’s position was that concessions made by the “gender group” on
more general issues made the lobbying position of the whole group weaker. At the same time,
some individual member organisations supported both the “gender focus” and the “progressive
focus” and tried to avoid the groups’ division.

390
    Some of the roles that were divided amongst GLTF’s member organisations were: * co-ordination of GLTF
meetings and review and interpretation of the Bill (TAWLA); * publicity and media advocacy (Tanzanian Media
Women Association -TAMWA); * lobbying MPs (Tanzania Gender Networking Programme -TGNP); * raising
awareness, sensitising the public on issues of land through community mobilisation, outreach and participatory
workshops (WAT, Tanzania Home Economics Association -TAHEA, National Organisation for Children, Welfare
and Human Relief - NOCHU, Women’s Legal Aid Centre - WLAC and SUWATA). An example of awareness
raising activities is International Women’s Day, March 8, 1997: the theme of that day was “women’s equal
rights”. The Ministry of Community Development, Women’s Affairs & Children launched a campaign for that
day together with NGOs. WAT was the main implementing partner. Leaflets, posters and T-shirts were handed
out, and songs were performed on “land is a right for all” and “myths and realities”. The Prime Minister as a
guest of honour gave a speech affirming women’s rights. WAT taped the speech and played it for grassroots
women throughout the districts they visited.
391
    The British Council sponsored the lobbying and mobilisation activities at district level, SIDA funded media
coverage and the Finnish Embassy funded publicity activities.
                                                                                                         109


After the final Parliament meeting, the Bills were once again examined by the Committee on
Economic and Financial Affairs, where MP Mrs. Tabitha Siwale was instrumental in keeping
most of the important provisions regarding women’s equal right to land in the Bills. However,
only some “progressive” proposals for amendments were accepted.

After the Land Bill and Village Land Bill were enacted by Parliament in February 1999, phase
three of GLTF’s activities began: awareness raising on the contents of the Acts. Information
dissemination through workshops and translation into Kiswahili of the most important
provisions in the Acts relating to women’s rights were started. Today, both NALAF and GLTF
still exist, but in loose forms of co-operating organisations.392

The 1999 Land Acts
Unlike in Uganda and Kenya, freehold tenure does not exist (anymore) in Tanzania. The form
of tenure that comes closest to ownership in Tanzania is a right of occupancy, which is a title
to the use and occupation of land. The two Land Acts partly maintain the dual land tenure
system as developed under colonial rule: statutory or granted rights of occupancy on the one
hand, and customary rights of occupancy on the other hand, with the difference that
customary land rights are no longer ‘deemed’ but now also ‘granted’. The Land Act mainly
applies to granted rights of occupancy, while the Village Land Act deals with customary rights
of occupancy. The main innovation in these Acts, and in particular the Village Land Act, is the
devolution of a great deal of authority and administration over ‘village lands’ to the grassroots
level. Most of the land in Tanzania is ‘village land’. In contrast with Uganda, where a large
number of new Lands Boards and Land Committees was to be established under the 1998
Land Act, in Tanzania a choice was made to use the existing and well-established village
governance machinery for land tenure administration and local dispute resolution. The Village
Councils, who are authorised to manage village land, are elected at meetings of the Village
Assemblies, which bring together all adult village residents.393 While general and reserved
land, as described in the Land Act, are still managed through a centralised governance
machinery (the Commissioner of Lands being designated the central management position),
control over property relations with regard to village lands is ‘democratised’.394

Contents of the 1999 Land Act
The Land Act is divided into fourteen Parts, which are again divided into sub-parts.

Article 2 interprets “land” as including:




392
    Interviews with Tabitha Siwale, Coordinator of WAT, October 5 and 6, 1999, Dar es Salaam, February 22,
2001, Nairobi, and March 5, 2001, Dar es Salaam; Lucy Tesha, Information Officer, WAT, October 5, 1999 and
March 5, 2001, Dar es Salaam; Tumaini Silaa, Co-ordinator GLTF and Legal Officer at TAWLA, October 5,
1999, Dar es Salaam; Gemma Akilimali, Programme Officer, TGNP, October 6, 1999, Dar es Salaam; and Deus
Kibamba, Programme Officer, Haki Ardhi, October 8, 1999.
393
    Since the amendment of the Local Government Act, one fourth of the members of the Village Council have to
be women.
394
    Robin Palmer, Land Policy in Africa: Lessons from Recent Policy and Implementation Processes, in: Toulmin,
C. and Quan, J.F. (2000), supra note 105, p. 281.
110


The objective of the 1999 Land Act is to promote the Fundamental Principles of the National
Land Policy. Of the thirteen principles mentioned in Section 3(1), the following are most
interesting with regard to women’s equal rights and equal access to land:




But most important of all is Section 3(2), which states:




While women had this right in previous legislation, it has never been explicitly stated, and can
now form a solid basis for awareness raising on women’s rights.

In Part III of the Act, classification and tenure of land are dealt with.
All land in Tanzania is declared to be public land vested in the President as trustee for and on
behalf of all citizens of Tanzania.395 Public land is then divided into three categories: (a)
general land: all land that is not village or reserved land; (b) village land; (c) reserved land
(for example forests, national parks, and land reserved for public utilities).

The Commissioner for Lands can, in the name of the President, grant a right of occupancy for a
term of maximum 99 years.396 While Section 18 of the Village Land Act gives equal status and
effect to both customary and granted rights of occupancy, customary rights of occupancy generally
have no term limit, while granted rights of occupancy cannot exceed the term of 99 years.397

Part VII deals with Conversion of Interests in Land. A person who has held land under
customary tenure or any other form of informal tenure, can, under certain conditions, obtain a
certificate of validation of that occupation,398 and can then apply for a right of occupancy for
a period of not less than 33 years.399 Sub-Part 2 of Part VII describes how irregular
settlements may be regularized by a scheme of regularization.

The Land Acts include several provisions that seek to protect women from discrimination in
allocation of land, and from exclusion while land is being transferred. An overview of all
relevant provisions concerning women’s access to land is provided below.

395
    Section 4(1).
396
    See Section 32(1). This definite term for the occupation and use of the land is one difference with a freehold title.
Other differences are:
- development conditions can be imposed on the occupancy right holder;
- an occupancy right holder has no right to subdivide, transfer or mortgage that land without the consent of the
     Commissioner for Lands;
- an occupancy right holder has to pay rent to the Government;
- the President may revoke the right of occupancy of the landholder.
See the Ministry of Lands, Housing and Urban Development, (1995), supra note 379, p. 7.
397
    See paragraph 4.1.1(viii) of the National Land Policy, and Section 27(1) of the Village Land Act.
398
    Section 53.
399
    Section 53(5).
                                                                                                          111


A very important part of the Land Act for women, which will be described here in detail, is
Part XII, which concerns co-occupancy and partition. Co-occupancy is defined as “the
occupation of land held for a right of occupancy or a lease by two or more undivided
shares”.400

      Co-occupancy can exist in two forms:
      1)    joint occupancy: where the land as a whole is occupied jointly under a right of
            occupancy or a lease, and no occupier is entitled to any separate share in the
            land.401
      As a consequence,
            (a) that land can only be disposed of if all the joint occupiers agree to do so;
            (b) while still alive, a joint occupier may transfer his/her interest to all the other
                  occupiers but to no other person;
            (c) if a joint occupier dies, his/her interest in the land will vest in the surviving
                  occupier or occupiers jointly.402
      According to the Act, joint occupancy can only be created between spouses.403
      2)    occupation in common: where any land, lease or mortgage is occupied in
            common, each occupier is entitled to an undivided share in the whole. An occupier
            in common must have the consent of the remaining occupier(s) before s/he can
            deal with her/his undivided share in favour of any other person. The consent from
            the remaining occupier(s) has to be in writing (or in any other manner clearly
            signifying that the consent is given freely and without undue pressure).404 On the
            death of an occupier, his/her share shall be treated as part of his/her estate, and
            therefore his/her heirs will inherit that land.405

In either case, two or more persons406 who occupy land together under a right of occupancy,
can be joint occupiers or occupiers in common,407 depending on how they register their co-
occupancy (there are registers for both).408 Each co-occupier is entitled to receive a copy of the
certificate of title of the right of occupancy.409

Section 161 deals specifically with co-occupancy and other relationships between spouses.
Clause 1 states:




400
    Section 159(1).
401
    See section 159(4).
402
    Section 159(4), (a), (b) and (c).
403
    Section 159(8). But spouses can be presumed to occupy in common, as per Section 160(1).
404
    See Section 159(6), which also states that such consent shall not be unreasonably withheld, without however
specifying what “unreasonably withheld” means in this context.
405
    See section 159(3) under (b) and (5).
406
    As long as they do not form an official association of persons.
407
    Section 159(2).
408
    Section 159(3) and (7).
409
    Section 160(1).
112


Clause 1 clearly states that the presumption of co-occupancy applies to both a ‘certificate of
occupancy’ (granted right) or ‘certificate of customary occupancy’ (customary right). There
seems to be a mistake in this clause, as it states now that the presumption is that spouses will
hold the land as occupiers in common, unless the spouses are taking the land as occupiers in
common. It seems that the intention here was to state that the presumption is that spouses will
hold the land as occupiers in common, unless the spouses are taking the land as joint
occupiers. The clause should probably read as follows: “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 joint
occupiers, 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.

Clause 2 continues:




Finally, Clause 3 stipulates:




Section 59 of the Law of Marriage Act, 1971 deals with the division of matrimonial property,
in which case the consent of the spouse is mandatory. It allows for separate property within a
marriage, but if this is not explicitly arranged, matrimonial property can be divided, if the
spouse can prove the value s/he has put in the property. This value in practice is difficult to
prove.

If land is occupied in common, one or more occupiers in common can apply for the partition
of this land, as long as all the occupiers in common consent.410 The Registrar who can make
an order for a partition of land has to have regard to several factors among which:



410
      Section 162(1).
                                                                                                 113




 (f) in respect of an application made by any person in whose favour an order has been made for
     the sale of an undivided share in the land in execution of a degree,




                 (Section 162(3) under 9e), (f) and (i)).


The Registrar may make an order for partition subject to limitations and conditions, including
conditions as to the payment of compensation to those occupiers in common who have not
agreed to the partition by those occupiers in common who have applied for it.

Part XIII, comprising only one section, deals with dispute settlement. The following courts
are listed as having exclusive jurisdiction to hear and determine disputes, actions and
proceedings concerning land: the Court of Appeal, the Land Division of the High Court, the
District Land and Housing Tribunals, Ward Tribunals and Village Land Councils.411 The latter
two categories of courts/tribunals are new and still need to be set up.




                                                                             Photo: UN-HABITAT



411
      See section 167(1).
114


Contents of the 1999 Village Land Act
The Village Land Act consists of six Parts. Part II, just as in the Land Act, describes the
Fundamental Principles of the National Land Policy.

Section 3(2) states again:




Part IV deals with Village Lands. Section 7 starts with a detailed list of what village land
consists of. This list includes: land, of which the boundaries have been agreed upon between
the village council claiming jurisdiction over that land and other relevant authorities.
According to Clause 1, paragraph (3), village land can also be:




                                                                                   Photo: UN-HABITAT
                                                                                                                115


Once the boundaries to village land have been demarcated or agreed to according to the prescribed
procedures, the Commissioner issues a certificate of village land to the relevant village.412 The
certificate of village land confers upon the Village Council the functions of management of the
village land. It also affirms the occupation and use of the village land by the villagers under and in
accordance with the customary law applicable to land in that area.413 The Village Council is seen
as a trustee managing property on behalf of the beneficiaries, the villagers.414 However, before a
Village Council may allocate land or grant a customary right of occupancy, the Village Assembly
needs to approve.415
Village land is divided into:
(a) communal village land (land for communal use, which cannot be made available for
     individual occupation and use);
(b) land occupied or used by an individual/family/group of persons under customary law;
(c) land that can be allocated by the Village Council for communal or individual
     occupation.416
The Village Council keeps a register of communal village land.417
In Section 15, an effort is made to deal with the consequences of Operation Vijiji, which took place
between 1970 and 1977. It stipulates that an allocation of land to a person or group of persons
under this Operation is confirmed to be a valid allocation, extinguishing any previous rights in that
land. Section 18 declares customary and granted rights of occupancy to have equal status and
effect.418 A lease and a sublease can be granted out of a customary right of occupancy and are then
called “customary leases”.419 A customary right of occupancy is also inheritable and transmissible
by will.
Section 20(1) repeats that any dispute relating to a customary right of occupancy (including a
dispute on succession or inheritance) will be determined in accordance with customary law. The
most important provision for women in the Village Land Act is Section 20(2), which states:




412
    This certificate will be registered in the register of village land that will be maintained by the Commissioner.
     Section 7(10)
413
    Section 7(6) and (7).
414
    Section 8(1) and (2).
415
    Section 8(5).
416
    Section 12(1).
417
    Section 13(6).
418
    A customary right of occupancy:
(a) can be allocated by a Village Council to a citizen, a family of citizens or an association of citizens;
(b) shall be in village land or reserved land;
(c) shall be capable of being of indefinite duration;
(d) is governed by customary law;
(e) may be granted subject to a premium and an annual rent;
(f) can be assigned to citizen(s) residing in the village;
(g) is inheritable and transmissible by will;
can be compulsorily acquired for public purposes, subject to prompt payment of full and fair compensation. See
Section 18(1).
419
    Section 19(1).
116


Two issues are dealt with in this provision:

(1) rules of customary law in respect of customary land have to be in accordance with the
    National Land Policy and with any other written law. This other written law can of course
    also include the supreme law of the land, the Constitution. Since discrimination on the
    ground of sex is prohibited in Tanzania’s Constitution, one could argue that any rule of
    customary law in respect of customary land that discriminates on the ground of sex
    violates the Constitution. In addition, Section 3(2) of the Village Land Act stipulates that
    women have the equal right to acquire, hold, use and deal with land as men do.

(2) rules of customary law in respect of customary land are void and inoperative when they
    deny women, children or persons with disability lawful access to ownership, occupation
    or use of any such land. This latter part of the provision is much weaker than the original
    text in the Village Land Bill. The original text stated that a rule of customary law shall be
    void and inoperative if it denies women “the right to acquire, hold, deal with, transmit by
    will or by gift or by any other means any interest in land for the reason only that she is a
    woman.”420 The major difference is the word “right” in the original text, and the word
    “lawful access” in the adopted provision. The legal “right to acquire, hold, deal with,
    transmit by will or by gift or by any other means any interest in land” is broader than the
    more limited “lawful access to ownership, occupation or use” as used in the current text.




                                   Sections 3(2) and 20(2) of the Village Land Act translated into Kiswahili and simplified.




420
   Section 20(2) of the Village Land Bill, Gazette of the United Republic of Tanzania, No. 39, Vol. 79, No. 4,
September 25, 1998.
                                                                                                             117


It has been argued that, because “lawful access” is weaker than “right”, this means that
customary laws are upheld and that women’s statutory rights to customary land are not
recognised.421 However, this provision is not only about “lawful access” in itself, but about
lawful access “to ownership, occupancy or use”; customary law is known to provide
secondary user rights to women, not lawful access to ownership and occupancy rights. Lawful
access to ownership and occupancy is a concept laid down in statutory law and therefore
women’s statutory rights to customary land are recognised in this provision. Combined with
the first sentence in this provision, which explicitly refers to statutory law, the obligation to
provide lawful access to ownership, occupancy or use can be used by women to demand their
equal rights.

An individual, a family unit or a group of persons recognised as such under customary law
may apply to their Village Council for a customary right of occupancy. A person who has
divorced from, or has left his/her spouse two years or longer and who was, prior to that
marriage, a villager, may also apply.422

If a family unit is applying, at least two persons from the family unit have to sign the
application.423 Section 23(2) makes clear that the Village Council is required to treat an
application from a woman, or a group of women no less favourably than an equivalent
application from a man, a group of men or a mixed group of men and women. Adverse
discriminatory practices or attitudes towards any woman who has applied for a customary
right of occupancy, may not be adopted or applied by the Council. If an application for a
customary right of occupancy is granted, a certificate of customary right of occupancy will be
issued to the applicant(s).424

The last sub-part of Part IV deals with adjudication of the boundaries of and interests in land,
which is necessary before any grants of customary rights of occupancy can be given.425 The
Village Council can establish a village adjudication committee whose members are elected by
the Village Assembly. This committee shall consist of maximum nine persons of whom not
less than four persons shall be women.426 The committee has several tasks related to
adjudication, and one of its tasks is to safeguard the interests of women, have regard for and
treat the rights of women to occupy or use or have interest in land not less favourably than the
rights of men.427




421
    Silaa (2001), supra note 354, p. 10.
422
    Section 22(1) and (2).
423
    Section 22(3) par. (b) under (ii).
424
    Section 25(1). A customary right of occupancy may be granted for an indefinite term or for any length of time
less than an indefinite term. The presumption shall be that it is given for an indefinite term. Section 27(1).
425
    Section 48.
426
    Section 53(1) and (2).
427
    Section 53(3) under (e); Section 57(3).
118


Part V of the Village Land Act describes how disputes have to be settled. For each village, the
Village Council must establish a Village Land Council, which can mediate between and assist
parties to arrive at a mutually acceptable solution on any village land matter. The Village Land
Council shall consist of seven persons, of who three shall be women, nominated by the
Village Council and approved by the Village Assembly.428 The quorum at a meeting of the
Village Land Council is four, at least two of whom shall be women.429 No person is obliged to
use the services of the Village Land Council for mediation in any village land dispute.430
When the conclusions resulting from the Village Land Council’s mediation are not accepted
by any of the parties, the dispute may be referred to a court having jurisdiction over the
village land dispute.431 These are the same courts listed in Part XIII of the 1999 Land Act.432


Summary of provisions relating to women’s rights in Land Act and Village Land Act


Recognition of women’s equal right to land:
  Recognition of women’s equal right to acquire, hold, use and deal with land (Section 3(2) of both
  Acts).



Affirmative action regarding appointment of women in the following land bodies:

      -    National Land Advisory Council: the Minister, while appointing the members of this Council,
           shall have regard to the importance of ensuring a fair balance of men and women in the
           Council (Section 17(2) of the Land Act);
      -    Village Adjudication Committee: of the maximum of 9 members, at least 4 shall be women.
           The Committee has to safeguard the interests of women. The quorum of the Committee shall
           be 5, of which at least 2 member shall be women (Section 53(2) of the Village Land Act).
      -    Village Land Council: of its 7 members, 3 shall be women who shall be (a) nominated by the
           village council; and (b) approved by the village assembly. The quorum at a meeting of the
           Village Land Council is 4 of whom at least 2 have to be women (Section 60(2) and (9) of the
           Village Land Act).


Gender-based discrimination prohibited against lessees, and against applicants of bank
loans:
 -        Consent of lessor is unreasonably withheld if lessor objects to lessee’s request on the ground
          of the gender of the transferee, assignee or sub-lessee (Section 93(2) of the Land Act);
 -        If a lender, being a corporate body, appears to discriminate against borrowers on account of
          their gender, the court may reopen a mortgage and may direct the lending institution to cease
          its discriminatory policy with respect to granting mortgages (Sections 141 and 142(1)(d)(ii) of
          the Land Act);




428
    Section 60(1) and (2). In its nomination of the members of the Village Land Council, the Village Council will
have regard to the standing and reputation of a nominee in the village as a person of integrity and with
knowledge of customary land law. Section 60(4).
429
    Section 60(9).
430
    Section 61(6).
431
    Section 62(1).
432
    Section 62(2): the Court of Appeal, the Land Division of the High Court, the District Land and Housing
Tribunal, the Ward Tribunal, the Village Land Council.
                                                                                                   119


Prohibition to discriminate against women while applying customary law:
 -   Customs, traditions and practices of the community may not be applied if they deny women
     lawful access to ownership, occupation or use of land. Any application of customs which deny
     women such lawful access, shall be void (Section 20(2) of the Village Land Act);
 -   In determining an application to grant a customary right of occupancy, the Village Council
     shall have special regard in respect of the equality of persons, and therefore treat an
     application from a woman/group of women equally to that of a man/group of men (Section
     23(2)(c) of the Village Land Act);
 -   In making its determinations, the Village Adjudication Committee or as the case may be the
     adjudication officer shall have regard and treat the rights of women to occupy or use or have
     interest in land not less favorably than the rights of men (Section 57(3) of the Village Land
     Act).


Protection of women with regard to leases

 -   The court, in considering whether to grant an order of termination of a       or to grant relief
     against such an order, shall have regard to the age, means and circumstances including the
     health and number of dependants of the lessee, and in particular whether a spouse of the
     lessee is likely to suffer undue hardship if an order were made (Section 108(1)(h)(iii) of the
     Land Act).


Protection of women with regard to mortgages:

 -   When a lender under a customary              seeks to dispose or permanently deprive a
     borrower from occupation of the mortgaged land, the borrower may apply for the mortgage to
     be reopened on the ground that the terms of the mortgage are disadvantageous to the
     interests of the borrower’s dependants (Section 113(3)(c) of the Land Act);
 -   The borrower, joint borrowers and/or a spouse of the borrower may apply to court for relief
     against the exercise by the lender of a remedy/remedies (including selling of the mortgaged
     land) (Section 139(1) of the Land Act);
 -   In considering whether to reopen a mortgage, the court shall have regard to the age, gender,
     experience, understanding of commercial transactions, and health of the borrower at the time
     when the mortgage was created (Section 142(3)(a) of the Land Act).



Protection of women with regard to assignments:

 -   The Village Council shall not allow an              of a customary right of occupancy which
     would operate/be likely to operate to defeat the right of a woman to occupy land under a
     customary right of occupancy, a derivative right or as a successor in title to the assignor
     (Section 30(4)(b) of the Village Land Act);
 -   If the occupier of customary land has breached a condition in the customary right of
     occupancy and fails to satisfactorily respond to a ‘notice of temporary              ’ served by
     the Village Council, the Village Council may offer a temporary assignment of this right of
     occupancy to a spouse living with the occupier and working on the land, or, those spouses as
     joint occupiers (Section 43 of the Village Land Act).



Protection of women with regard to the grant of a derivative right:

 While determining an application for approval of a grant of a                , the Village Council or
 Village Assembly shall have regard to the need to ensure that the special needs of women for land
 within the village is and will continue to be adequately met (Section 33(1)(d) of the Village Land
 Act).
120


Protection of women with regard to the surrender of a right of occupancy, or of abandonment
of the land:

  -       If a holder of a granted right of occupancy wishes to               his/her right, the
          Commissioner shall not accept any surrender of the whole/part of any occupied land unless
          the surrender is not designed to defeat the rights of a spouse to share in or obtain part of the
          land (Section 42(2)(f) of the Land Act);
  -       A village/group of villagers may             their customary right of occupancy, but when the
          effect of the surrender could deprive or impede on the way a woman occupies land which she
          would be entitled to occupy under customary law or otherwise, the surrender shall not
          operate and shall be of no effect (Section 35(2) of the Village Land Act);
  -       After            of a customary right of occupancy, the Village Council has to offer that land to
          the wife/wives (or if the person who surrendered the land was a woman, to the husband),
          before re-granting this right to anyone else (Section 36 of the Village Land Act);
  -       If an occupancy right holder has not occupied the land for at least 5 years, or has not paid
          rent for at least 2 years, or has left the country without making any arrangements for any
          person to be responsible for the land, and if he/she has not notified the Village Council, that
          land may be declared                 by the Village Council, unless a spouse or dependants of the
          occupier are using that land (Section 45 of the Village Land Act).




Consent clauses:

      -    Every co-occupier and person or body having any interest in the land that the occupancy
           right holder wishes to surrender needs to consent to that surrender in writing;
      -    An occupancy right holder or lessee may mortgage his/her interest in (part of) the land, but
           before a mortgage of a matrimonial home (including a customary mortgage) can be valid,
           there needs to be documented evidence that any spouse of the borrower living in that
           matrimonial home has assented to that mortgage (Section 112(3)(a) of the Land Act);
      -    A surrender of a customary right of occupancy has to be accompanied by evidence that all
           persons dependent on the person surrendering that right are aware of the surrender and
           have agreed to it (Section 35(7)(c)(i) of the Village Land Act).




Notification of spouse:

 -        If an occupancy right holder wants to create a “small mortgage” (for max. 3 years), the lender
          has to give the borrower and his/her spouse(s) a copy of the mortgage instrument. When the
          borrower then does not meet his/her obligations under the small mortgage, the lender may
          apply to court to authorize him/her to exercise the remedy/remedies s/he applied for, but the
          lender has to serve a notice to the borrower and any spouse of the borrower, to inform them
          of the application and the remedy being applied for (Sections 114(4) and 138(2)(b) of the
          Land Act);
 -        When the borrower has not met his/her obligations under a mortgage, the lender may sell the
          mortgaged land, but a copy of the notice to sell has to be served on the spouse of the
          borrower, and on any person who is a co-occupier with the borrower (Section 131(3)(d) of the
          Land Act).
                                                                                                         121


Clauses on co-occupancy:

 -    Co-occupancy may be either joint occupancy or occupancy in common (Section 159(1) of the
      Land Act);

 -    Joint occupancy can only be created by spouses (Section 159(8) of the Land Act);

 -    Each co-occupier is entitled to receive a copy of the certificate of title of that right of
      occupancy (section 160(1) of the Land Act);

 -    Where a spouse obtains land under a right of occupancy, for the co-occupation and use of
      both or all spouses, it is presumed that the spouses will hold the land as occupiers in common.
      This presumption will only change if provision in the certificate of (customary) occupancy
      clearly states that one spouse is taking the right of occupancy in his/her name only (Section
      161(1) of the Land Act);

 -    Land can be held under a right of occupancy in the name of one spouse only. However, if the
      other spouse(s) contribute(s) by her/their labour to the productivity, upkeep and improvement
      of that land, the spouse(s) shall acquire an interest in that land in the form of an occupancy in
      common with the spouse in whose name the certificate of (customary) occupancy has been
      registered (Section 161(2) of the Land Act);

 -    Where a spouse, who holds a right to occupancy to land and/or a house in his/her name
      alone, undertakes to mortgage, assign or transfer that land, then the lender is obliged to
      inquire if the spouse(s) of the borrower have consented in accordance with section 59 of the
      Law of Marriage Act, 1971. Where the spouse disposing of the land deliberately misleads the
      lender, the disposition of the land shall be voidable at the option of the spouse(s) who have
      not consented to the disposition (Section 161(3) of the Land Act);

 -    One or more occupiers in common, with the consent of all the occupiers in common, may
      apply to the Registrar for partition of the land occupied in common. The Registrar may order
      for a partition of land having regard to, where the occupiers in common are spouses, whether
      their interests will be or have been adequately provided for as a consequence of or after the
      partition is effected, and in particular, a spouse or dependants of the occupier in common
      applying for partition will not be rendered homeless by such partition. The Registrar may also
      order the payment of compensation to those occupiers in common who have not agreed to
      partition by those occupiers in common who have applied for the partition (Section 162 of the
      Land Act).



4.4.3 Implementation of the Land and Village Land Acts
Section 1(2) of both the Land Act and the Village Land Act state that the Act shall come into
operation on a date which the Minister may, by notice published in the Gazette, appoint. They
also state that the Minister may appoint different dates for the entry into force of different
Parts. Both Acts came into operation on May 1, 2001.433 The Women Advancement Trust on
that day launched a booklet to guide paralegals in raising awareness on gender related clauses
in the Acts. The Deputy Minister for Lands and Human Settlements Development officiated in
this launch.434

433
    Government Notice No. 485 and 486 of December 22, 2000. According to the Ministry of Lands and Human
Settlements, both Acts have come into operation as a whole. Regulations accompanying the Acts were expected
to be issued at the same date. Simplification and translation of the Village Land Act were also expected to be
finalised soon. A workshop for stakeholders was held between March and May 2001, during which the
translation of the Village Land Act and the Regulations was discussed. Interview with Mr. Fidelis Kasumba
Mutakyamilwa, Head of Legal Section, Ministry of Lands and Human Settlements Development, March 4, 2001,
Dar es Salaam.
434
    Email from Women Advancement Trust, May 15, 2001.
122


An Implementation Committee within the Ministry has prepared an Action Plan, addressing
immediate and long-term measures necessary for the implementation of the new Land Acts.435
The Government of Tanzania in 2000 appealed to donors to help fund implementation of the
Land Acts over a period of 10 years, which was estimated to cost USD 1.7 billion. These
funds would mainly be spent in the areas of land tenure security, market reforms and
information management.436

It is expected that establishment of the land bodies under both Acts will not create many
problems, as conscious efforts were made to incorporate new functions into already existing
bodies as much as possible. The challenge will mostly be to raise awareness among
Tanzania’s population on their rights under these technical laws, and to bridge the gap
between statutory and customary law.

4.4.4 Policy and legislation related to housing
In 2000, the Ministry of Lands and Human Settlements Development issued the National
Human Settlements Development Policy. Its future vision is for everyone to have adequate
and affordable shelter, which is legally secure, accessible and free from all forms of
discrimination.

Under its Human Settlements Profile, a considerable increase in numbers of women-headed
households is confirmed: by 1988, women headed households constituted 30% of all
households in the country. Therefore, the need for “making women accessible to land and
home ownership”(sic) is underlined. Although according to the Policy, there are no
restrictions in law for women to own housing, “existing customary laws and values,
especially when it comes to allocation and inheritance of land and property in villages, still
restrict house ownership by women.”437
One of the fourteen Objectives of the Policy is: “to make serviced land available for shelter
and human settlements development in general to all sections of the community, including
women, youth, the elderly, disabled and disadvantaged”.438
Under “Issues and Policy Statements” there is again mention of the issue of those cultural
beliefs and traditions that inhibit development and the participation of women in education,
and in land and property ownership. One of the policy statements attached to this issue is that
collaboration with NGOs and CBOs will be increased, in order to strengthen education
campaigns aimed at combating cultural and social beliefs that inhibit development.439 As to
the evaluation of the impact of policies, strategies and actions on the provision of adequate
shelter and the achievement of sustainable human settlements development, it is stated that
available information from now on has to be disaggregated by age and gender.440 Another
issue mentioned is that women are often not fully involved in planning and decision making.
The government then commits itself to ensuring that its policies, legislation and programmes
shall incorporate gender perspectives and vulnerable groups.441

435
    The Guardian, January 28, 2001. At the time of writing, this Action Plan was not available to the author.
436
    The East African, Tanzania Wants $1.7bn to Promote Land Markets, p. 9, September 11-17, 2000.
437
    Paragraph 2.2.3 of the National Policy on Human Settlements Development. It is also stated that almost all
housing in rural areas and more than 90% of housing in urban areas is privately owned.
438
    Paragraph 3.2(i). Objective (v) further states: “To promote and include the participation of the private and
popular sectors, CBOs, NGOs, co-operatives and communities in planning, development and management of
human settlements.”
439
    Paragraphs 4.1.6.1(ii) and 4.1.6.2(v).
440
    Paragraph 4.1.13.
441
    Paragraph 4.1.14.
                                                                                                          123


The Rent Restriction Act of 1984 regulates the relationship between landlords and tenants, and sets
a firm framework for the security of tenure of tenants, without discrimination between women and
men. Tenants are not to be evicted without due process, and are not to be charged arbitrary rental
rates.442
4.4.5 Conclusion
Women’s equal right to land is firmly enshrined in the newly adopted Land Act and Village
Land Act. Several other provisions have been included that seek to protect women from
discrimination, to inform them or require their consent prior to important transactions. Some
other provisions entail affirmative action. Section 20(2) of the Village Land Act, which
prohibits the application of customary land law when it discriminates against women, has
unfortunately been watered down to “to the extent that it denies women their lawful access to
ownership, occupancy and use of any such land”. Organisations of women lawyers have
reacted cautiously to this amended provision, while other women activists insist that the
intention of non-discrimination is still there and that this provision can be worked with to help
women living on land where customary rules apply. Both Article 13 of the Constitution
(prohibiting discrimination on the basis of sex) and Section 3(2) of the Village Land Act
recognising women’s equal right to acquire, hold, use and deal with land could also be used to
support such cases. A very powerful provision is the one that presumes co-occupancy,
especially when considering this provision in contrast to the “lost clause” on co-ownership in
Uganda. The inclusion in this provision of the Registrar’s obligation to register the spouses as
occupiers in common, will help to ensure that women’s name is actually written on the
certificate of occupancy. Training of all officials that deal with land matters, such as allocation
and registration is crucial in this respect. It is hoped that affirmative action for women’s
representation in bodies that make decisions on land allocation will also improve women’s
equal rights in and access to land, as in the past the Village Councils tended to allocate land to
household heads, who are usually men.443

The Village Land Act incorporates relatively decentralised procedures: for example
designating the Village Councils as land managers, responsible for guiding community
decisions on the distribution of land within the village into individual, households, clan,
community or other lands and their adjudication, registration and titling. The Land Act
however still shows a top down approach with most control lying with the Commissioner of
Lands. Finally, the text of both the Land Act and the Village Land Act is still gender biased in
favour of men.




442
    Magdalena K. Rwebangira, Global Campaign on Secure Tenure: The Legal Framework in Tanzania, in:
Workshop Report on Secure Tenure Campaign, Dar es Salaam, 2-3 October 2000, p. 7.
443
    Thea Hilhorst, Women’s Land Rights: Current Developments in Sub-Saharan Africa, in: Toulmin, C. and
Quan, J.F. (2000), supra note 105, p. 191.
124




                                                                                   Photo: UN-HABITAT




4.5 Marriage and divorce laws
Prior to 1971, Muslims, Christian, Hindu and customary laws governed marriage and divorce,
in addition to a civil marriage regime. A uniform Marriage Act passed into law in 1971, which
integrated existing marriage laws while preserving certain of the religious and traditional
rights. The Marriage Act however explicitly states that it supersedes both Islamic and
customary law in regulation of all four types of marriage. 444


444
  Magdalena K. Rwebangira, The Legal Status of Women and Poverty in Tanzania. Uppsala (Sweden),
Nordiska Afrikainstitutet, 1996, posted on: http://www.law.emory.edu/IFL/region/eastcentralafrica.html.
                                                                                                             125


The law stipulates that
® marriage registration (either monogamous or polygamous marriages) is obligatory and non-
   compliance is punishable by a fine, but will not render the marriage void;445
® valid marriage requires free consent of marrying parties;446
® minimum age for marriage is 18 for males and 15 for females; courts may permit
   underage marriage of parties who have reached 14 years of age if specific circumstances
   make marriage appear desirable;447
® first wife can object to polygamous marriage if this would result in hardship for her and
   her children;448
® women who cohabit with a man for two years have the legal rights of wives; and
® bride wealth is no longer a requirement for a marriage to be legal;449
® the party seeking divorce must first apply to Marriage Conciliatory Board which must
   certify failure to reconcile parties before divorce suit can be initiated.450

The Marriage Act recognises the equal right of a married woman to acquire, hold and dispose
of property, whether movable or immovable. It also guarantees the rights to property that a
woman has acquired on her own, as well as rights to matrimonial assets. Where there are two
or more wives, they all have equal rights (equal to each other; not to the husband!).451
Furthermore, the law requires judges to take domestic activities into account as contributions
to marital assets. However, Section 60 states that, when during the marriage property is
acquired in the name of the husband or of the wife, it is presumed that the property belongs
absolutely to that person, to the exclusion of the spouse. Only when spouses jointly register
their names on matrimonial property, is there a presumption that they have equal interests in
it. This seems to contradict Section 161 of the Land Act, in which the presumption of co-
occupancy in common with regard to land is now incorporated.

Despite the relative degree of legal protection in this Act, women’s equal rights before, during
and upon dissolution of marriage are still not enshrined. Moreover, implementation of this law
has not been consistent or effective. Many people do not register their marriage, and as a
consequence the marriage can also not officially be dissolved in case of divorce or death, and
women then have little basis for legal claims to marital property.452 To remedy this, an
amendment to this Act, rendering a marriage void if not registered, would improve the
situation for women, as long as such amendment is combined with a country wide awareness




445
    Sections 41(f) and 43-55 of the Law on Marriage Act of 1971.
446
    Section 38.
447
    However, the Penal Code provides that persons of “African or Asiatic descent” may marry or permit marriage
of girl under 12 years of age in accordance with their custom or religion if marriage is not intended to be
consummated before she attains 12 years.
448
    Section 20.
449
    Deborah F. Bryceson, Gender Relations in Rural Tanzania: power politics or cultural consensus? In: Colin
Creighton and C.K. Omari (eds) Gender, Family and Household in Tanzania, Aldershot (UK), Ashgate
Publishing, posted on: http://www.law.emory.edu/IFL/region/eastcentralafrica.html
450
    Evidence of breakdown of marriage for the court’s purposes must indicate the following grounds: mental or
physical cruelty; wilful neglect; desertion; voluntary separation; or change of religion dissolving marriage under
religious law the parties were subject to at time of marriage.
451
    Sections 56-58.
452
    Marsha Freeman, Human Rights in the Family, International Women’s Rights Action Watch, 1993, posted on:
http://www.law.emory.edu/IFL/region/eastcentralafrica.html
126


campaign. In addition, few women are financially or socially able to pursue court remedies.
When women do go to court, judges, with traditional attitudes toward women, seldom uphold
or enforce the women’s rights outlined in the law.453 Awareness raising among men and
women, including judges, Members of Parliament and government officials, of women’s
equal rights before, during and upon dissolution of marriage is very necessary.

The Luguru, an ethnic group in north-eastern Tanzania which is approximately 85% Muslim,
are matrilineal. Traditionally, cross-cousin marriages were most preferred. Whether this was
due to religious considerations or the desire to keep land firmly within a given lineage, is not
clear. The Luguru also practice polygyny.454 If a Luguru man married more than one woman,
each wife lived on the land of her own lineage, and the husband visited each in turn.
Government policies in the 1970s encouraged men and women both to be more involved in
the economic life of a specific village, resulting in a change to the tradition of polygynous
men moving between their wives. Thus, polygynous men and their wives began residing in
the same household and women therefore had to leave their own lineage’s land. Government
regulations concerning land, property and personal status within the family are increasingly
shifting family organisation toward patrilineal patterns.

In general, under customary law a divorced woman loses her access to land, and her parents
would be required to refund the bride price.455


4.6 Inheritance Laws
In Tanzania (Mainland), three different systems of law regarding inheritance co-exist:
1) Statute law
    (a) the Indian Succession Act, 1865, which applies to Tanzanian residents of European
         origin and which may apply to Christians in general, and
    (b) the Hindu Wills Act, 1870, which applies to Hindus;
2) Customary law, which applies to most indigenous persons in the rural areas;
3) Islamic law, which applies to Muslims.

The applicability of these different laws depends on a person’s ethnicity, race, religion or way
of life. The gradually increasing inter-mixture of tribes and communities through
urbanisation, intermarriage and women’s involvement in economic activities, have led to
conflicts and choices between the different laws. The Courts have tried to develop criteria to
help in determining which law applies to which case. Below, the different laws relating to
inheritance and succession are examined.




453
     Felician S.K. Tungaraza, The Family and Social Policy in Tanzania”, 1995, in: Colin Creighton and C.K.
Omari (eds) Gender, Family and Household in Tanzani, Aldershot (UK): Ashgate Publishing), posted on: http://
www.law.emory.edu/IFL/region/eastcentralafrica.html.
454
     Jane Rose Kikopa, Law and the Status of Women in Tanzania, African Training and Research Center for
Women, Addis Ababa, 1981, posted on: http://www.law.emory.edu/IFL/region/eastcentralafrica.html.
 455
     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. Silaa (2001), supra note 354, p. 14.
                                                                                                       127


4.6.1 The Indian Succession Act of 1865
The Indian Succession Act of 1865 is an old piece of (English) legislation which was
imported to Tanzania (Mainland) from India as it applied in India in 1907.456 Although this
same Act has undergone a number of changes in India, the Act has remained unchanged in
Tanzania up to today. Under this Act, the spouse (either wife or husband) or kindred inherit
the property of a person who dies without leaving a will (intestate).457

Section 27 of the Act lays down the rules on how the deceased’s property has to be divided:




Section 28 provides that where there is no widow, the property of the deceased shall go to the
lineal descendants or to his other kindred, and where he has left no descendants or other
kindred the property shall go to the crown (the state).

Sections 29 and 30 deal with the distribution among the lineal descendants:




No distinction between male and female children is made, which means they inherit in equal
shares. The husband surviving his wife has the same rights in respect of her property, if she
dies intestate, as the widow has in respect of her husband’s property, if he dies intestate.458

Illegitimate children cannot inherit from their father’s estate, but they may inherit from the
estate of their deceased mother(s).459 The deceased’s father, mother, brothers and sisters
inherit only where there are no lineal descendants surviving him/her. They share half of the
estate where there is a widow surviving. Both movable and immovable property can be
inherited under this Act, as long as those properties are situated in the same territory.460

This Act applies to Christians and all those of European origin. There is no authority to show
that this Act does not apply to Africans who are Christians, but in practice customary law is
usually applied when an African person dies.461




456
     This law was made applicable to Tanzania by the Indian Acts (Application) Ordinance, Cap. 2.
457
     Section 26 of the Indian Succession Act, 1865.
458
     Section 43.
 459
     Magdalena K. Rwebangira and M.C. Mukogoye (eds), The Law of Inheritance in Tanzania, A Status Report,
Women and Law in East Africa, Nairobi, 1995, p. 4.
 460
     Ibid, p. 5.
 461
     Ibid, p. 30.
128


4.6.2 Customary law
Customary law has been defined as law which is either written, declared or unwritten but is
recognised by the community as having the force of law.462 It is applicable to African
members of the community regardless of their religious affiliation.

The many different ethnic communities in Tanzania (Mainland) all have their own customary
laws. Of these ethnic communities, 80% are patrilineal. In the Local Customary Law
(Declaration ) Order (No. 4) of 1963, the rules of inheritance of most patrilineal communities
have been codified, although unwritten rules continue to exist that have to be proved in
court.463 The customary rules of inheritance practised in the matrilineal communities (which
form the remaining 20% of ethnic communities in Tanzania) remain to be proved in the court
of law as a question of fact whenever they are invoked. Very little is known about the
matrilineal customary rules, and it is said that several matrilineal societies are changing
towards patrilineal rules.464 Some inheritance rules followed by the Luguru, one Muslim
matrilineal community, are described at the end of this Section.

Summary of the codified rules applying in patrilineal communities:
When a man dies, the main heirs to his estate are: children, and in case he leaves no children:
brothers in first and second degree, sisters in the third degree, father, paternal uncle and aunts,
and husband or wife.465 The rules of division provide for three degrees:

      1)   first degree heirs inherit first and get the biggest share of the deceased’s estate. Usually, the
           first son from the first house is the heir in the first degree;
      2)   second degree heirs are all other sons. They get the next biggest share, but the older sons
           get more than the younger ones;
      3)   third degree heirs are, normally, the daughters of the deceased. Usually, their share of
           inheritance is smaller than the shares that go to the heirs in the first two degrees. Older
           daughters will get more than the younger ones. However, if the deceased leaves no sons,
           then the daughter of the first house will become the heir in the first degree.


Even if a daughter is the heir in the first degree, she (or any other woman/girl inheriting) can
only inherit immovable property for her use during her lifetime, and she cannot sell the
property unless there are no male members in the family.466 In comparison, men inherit
movable and immovable properties absolutely. In 1989, the High Court ruled that the custom
prohibiting women from selling clan land is discriminatory, unconstitutional and in violation
of Tanzania’s international human rights obligations.467 This ruling made the Local Customary

462
     Interpretation of Laws and General Clauses Act, 1972 (Cap. 1), section 2(1).
463
     Government Notice 436/1963.
 464
     Rwebangira and Mukogoye (1995), supra note 459, p. 5.
 465
     Ibid, p. 5-7.
 466
     Rule 20 of the Local Customary Law (Declaration) Order.
467
     High Court, Bernardo Ephrahim Vs. Holaria Pastory and Gervazi Kaizirege, Civil Appeal No. 70 of 1989,
(HC.Unreported), as quoted in Rwebangira and Mukogoye (1995), supra note 459, p. 7. The background of the
case was as follows: Holaria Pastory had inherited land from her father under a valid will and wanted to sell this
land to Gervazi Kaizirege. Holaria’s nephew, Bernardo Ephrahim, took her to court claiming that under
customary law, only men and not women have the power to sell clan land. The Primary Court ruled in
Ephrahim’s favor. Holaria appealed to the District Court, which ruled that the Tanzanian Bill of Rights forbids
discrimination based on sex. Ephrahim then appealed to the High Court, which held that the customary law was
in conflict with the Constitution of Tanzania and its international human rights obligations and that the
prohibition on women selling clan land is discriminatory and contrary to human rights. The Court further found
that women had the same right as men to inherit, own and sell clan land. (As described in Chaloka Beyani,
Towards a more effective guarantee of women’s rights in the African human rights system, in: Rebecca J. Cook
(ed), Human Rights of Women, 1994, p. 292-294).
                                                                                                   129


Law (Declaration) Order unconstitutional in as far as it prohibits women from selling clan
land. However, as the Order has not been amended or repealed since the 1989 ruling, the
protection of this ruling is limited to those who go to court to challenge the customary rule.

The customary rule that a woman can only inherit immovable property for her use during her
lifetime does not only contradict the Constitution and international human rights law. It also
violates Part IV of the Law of Marriage Act, No. 5 of 1971 and the Land Acts of 1999, which
recognise women’s equal right to acquisition, ownership and disposition of property
irrespective of gender.

Rules regarding widows provide that a widow has no share in her husband’s estate if the
husband is survived by relatives of his own clan. Similarly, the husband cannot inherit from
his wife who dies intestate, unless the wife had no surviving children or any member of her
own family.468 The widow’s share is to be cared for by her children ‘just as she cared for
them’.469 If a husband, while still alive, distributes part of his estate, this portion will be taken
into account during distribution after his death. It is unclear whether a husband, while still
alive, could distribute part of his estate to his wife. Upon the death of her husband, a widow is
asked if she wishes to live as a wife with one of the deceased husband’s relatives. If she
refuses, no bride wealth has to be paid back and the widow can freely return to her relatives.
In practice, this means that if she refuses, the widow will be dispossessed and evicted. A
childless widow is entitled to half of the property acquired during her married life with her
deceased husband, after the debts of the deceased have been paid off.470 In practice, however,
this entitlement is never put into effect.




                                                                                       Photo: UN-HABITAT


468
    Rules 27 and 28 of the Local Customary Law (Declaration) Order and supra note 455, p. 6.
469
    Rule 27 of the Local Customary Law (Declaration) Order, 1963.
470
    Local Customary Law (Declaration) Order, 1963 (Law of Persons) GN 279/1963, Rule 77(1), as quoted in
Rwebangira and Mukogoye (1995), supra note 459, p. 7.
130


In determining whether customary or statutory law applies to the administration and division
of a deceased person’s estate, a presumption exists that all members of the African
communities apply customary rules of inheritance regardless of their place of origin,
residence and their religious beliefs. This presumption has given rise to conflict in opinion on
which law is applicable (statutory or customary law), and the courts as a consequence have
developed the “mode of life test” to deal with such conflicts. This test is derived from the
Judicature and Application of Laws Ordinance, Cap. 453. Section 9(1)(b) of this Ordinance
provides that:




The following three court rulings show that a presumption of the applicability of customary
law exists, unless a person’s mode of life clearly shows a break or distance with his/her area
of origin and religion:

      •   a husband and wife had married under Christian marriage procedures. The couple
          lived in Dar es Salaam. The husband had left his area of origin when he was 7 years
          old, and he had gone to school in another area. When the husband died intestate, the
          case was brought before the High Court to determine whether customary or statutory
          law applied to the administration of his estate. The widow argued that statutory law
          applied, while her late husband’s brother argued that customary law applied. The High
          Court ruled that statutory law applied because “the deceased had abandoned the
          customary way of life in favour of what may be called a Christian and non-traditional
          way. There is satisfactory evidence that he was to a large extent alienated from his
          family and that his children had no connection whatsoever with them.”471

      •   A Malawian man had married a Tanzanian woman. The couple lived in Dar es Salaam.
          Upon his death, the deceased left a house. The widow wanted to inherit the house
          under statutory law, but the deceased’s brother wanted customary law to apply so that
          he could sell the house and distribute the proceeds among the children. The first court,
          the Primary Court, ruled that customary law applied. The widow appealed to the
          District Court, which ruled that statutory law applied. The High Court ordered a retrial
          and instructed the lower courts to first investigate the mode of life of the deceased.472

      •   Upon the death of an African man who had lived in a village all his life, the High
          Court ruled that the law applicable to the administration of his estates is customary
          law rather than statutory law.473




471
     High Court, Re Innocent Mbilinyi, deceased, (1969: HCD, M 283), as quoted in: Rwebangira and Mukogoye
(1995), ibid, p. 12.
 472
     High Court, George s/o Kumwenda vs Fidelis Nyirenda (1981:TRR 211) ibid, p. 13.
473
     High Court, Abdalla Shamte vs. Mussa, (1972: HCD M. 9), ibid, p. 13.
                                                                                                          131


Among the Luguru, land used to belong to the lineage, and each member of the lineage had
the right to live on and cultivate the land.474 In the case of divorce or death, the land reverted
to the lineage. If there were no children, the house, as property of the couple, would be
demolished and the materials divided up between the two families. Houses are no longer
destroyed; rather, whichever spouse will remain in the house compensates the other (or his or
her lineage) for building materials. If a man acquires property other than the land of his or his
wife’s lineages, on his death it is inherited by his sister or, if he has no sister, his wife. On the
death of this woman (the sister or the wife), the inheritance passes to her sons, and on their
deaths to her daughters.475 There is a trend in recent years, however, for inheritance to be more
patrilineal, with a man’s children inheriting from him directly, often with a bias toward the
sons. Although the practice is illegal, it increasingly appears that when a woman’s husband
dies, frequently the deceased husband’s relatives will force the widow out of the house
without any compensation at all.

Another society that is matrilineal in nature are in the Kibangile and Mtamba Villages in
Morogoro district. Children’s names follow the mother’s line, and the clan owns land. Men as
husbands do not own land, but the uncles are the clan leaders. Upon marriage, they move to
the land allocated to their wives by the family, and upon divorce men leave the land.
Daughters and sons can inherit land from their mother or uncle. Neither the son nor the uncle
can interfere with the land that belongs exclusively to a woman.476 However, the uncles often
dominate positions of decision making, which can also lead to women’s exclusion from land.
The matriarchal system is increasingly disintegrating and being replaced by patriarchy, due to
intermarriages, migration and the villagisation process.477

4.6.3 Islamic law
Around 35% of the 35 million population in Tanzania is Muslim; this percentage includes
Zanzibar.478 Several statutory laws provide for the application of Islamic law in matters
relating to succession or inheritance where the parties are Muslim.479 However, Islamic law
does not apply automatically, as the first presumption is that where a deceased person is
African, customary law will apply. Only when the following conditions have been fulfilled,
will Islamic law be applicable:
® the deceased was a Muslim;
® the deceased had made clear that Islamic law should apply in the administration and division
     of his estate, through written or oral declaration;

474
    Rwebangira (1996), supra note 444.
475
    Ibid.
476
    Silaa (2001), supra note 354, p. 19.
477
    Ibid, p. 22.
478
    M.K. Ngaiza, , How Are Tanzanian Women Affected By Social Practice and the Laws of Inheritance? A
Literature Review and Gender Critique, Women and Law in East Africa, Dar es Salaam, 1994, p. 5. Tanzania
Mainland and Zanzibar have separate legislative, executive and judicial institutions. Except for the issue of
marriage, both the mainland and Zanzibar have dual legal systems, consisting of statutory/civil laws and
religious/customary laws. Zanzibar is exempt from the uniform Law on Marriage Act and still maintains separate
judicial administration for Muslims. Fenella Mukangara and Bertha Koda, Beyond Inequalities: Women in
Tanzania, Tanzania Gender Networking
Programme and Southern African Research and Documentation Center, Dar es Salaam, 1997.
479
    For example: the Succession (Non-Christian Asiatic) Ordinance, Cap. 122, Section 6(1); the Administration
(Small Estate) Ordinance, Cap. 30, Section 19(1)(a); the Judicature and Application of Laws Ordinance, Cap.
453, Section 9; the Magistrates Court Act No. 2 of 1984, Section 18; the Law of Marriage Act No. 5 of 1971; the
Mohamedan Estate (Benevolent Payments) Ordinance, Cap. 25; the Re-statement of Islamic Law, GN 22 of
1967; and the Wakf Commissioners Act, Cap. 109, as listed in: Rwebangira and Mukogoye (1995), supra note
459, p. 8.
132


® the acts or manner of life of the deceased show his intention to have his estate be administered
     in accordance with Islamic law.
To help determine whether customary or Islamic law applies, the ‘intention of the
deceased test’ was developed. The written and oral declarations, acts, intention or manner
of life of the deceased are factors taken into account. The test of the intention of the
deceased is derived from the Administration (Small Estate) Ordinance, Cap. 30, and from
judicial precedents. Section 19(1)(a) provides:




The court cases described below show how this test is applied:
   • a Nyamwezi man had married four wives according to Islamic law rites. Upon his
       death, his wives found that they were excluded from the Will that their husband had
       left, and that instead his nephew inherited the entire estate. One of the wives took this
       case to court and argued that Islamic law applied to the administration of her late
       husband’s estate. High Court Justice Sir Ralph Windham took the position that in an
       African Muslim community, religious law applies in personal matters such as
       marriage, whereas customary law may apply in all spheres of life. He added that when
       the rights of an African Muslim wife at and during her marriage are governed by
       Muslim law, it cannot be held that her rights of inheritance upon her husband’s death
       are to be governed by her tribal custom, which may give her no such rights. A wife’s
       rights of inheritance are bound up with her rights during matrimony. He held that
       Islamic law applied to this case.480
   • A Hehe Muslim man who was an army officer had married a Hehe Muslim woman
       under civil marriage rules. He was a practising Muslim. High Court Justice Mfalila
       applied the mode of life test, and determined that the deceased was a practising
       Muslim whose manner and way of life were far removed from his tribal customs. The
       intention of the deceased was determined to be that his estate was to be administered
       according to Islamic law and not Hehe Customary law.481
The Quran recognises both testamentary and intestate succession. However, only 1/3 of a
deceased’s estate can be included in a Will. The remaining 2/3 is distributed under intestacy
rules laid down in the Quran, which has fixed the shares allocated to heirs. Persons recognised
as heirs include the widow or widower, father, mother and children. Grandparents will only
inherit when the heirs in the nuclear family cannot inherit. In general, a male under the Quran
takes double the share of the female. Sura 4 Verse 11 of the Quran states: “Allah ordains
concerning your children that the male shall have a share equivalent to that of two females. If
the children are females numbering two or more, their proportion is two thirds of the
inheritance.” When a man dies leaving a wife and children, the wife receives 1/8 of the net
estate. When there are no children, the wife receives 1/4. In polygamous marriages, the wives
share the 1/8 (if there are children) or the 1/4 (if there are no children).
In general, a widow cannot inherit the property of any person other than her husband.482

 480
     High Court, Re Estate of the late Suleman Kusundwa (1965: EA 247), as cited in: Rwebangira and Mukogoye
(1995), ibid, p. 14.
 481
     High Court, The Estate of the late Salum Omari Meremi, (1973 LRT No. 80).
482
     Patricia Kameri-Mbote (ed), The Law of Succession in Kenya, Women and Law in East Africa, Nairobi, 1995, pp.
11-12.
                                                                                                              133


4.6.4 Hindu law
It is estimated that 20,000 Hindus live in Tanzania today. The Hindu Wills Act of 1870 still
applies to the Hindu community in Tanzania (Mainland) today. The provisions of this Act are
gender-neutral. Under this Act, widows may not be deprived of their rights to maintenance.483

4.6.5 Jurisdiction of courts in inheritance/succession matters
Primary Courts have original jurisdiction to deal with the administration of a deceased’s
estate, provided the applicable law is Customary or Islamic law.484 In practice, matters falling
under customary law are often first dealt with by the Clan Councils and only reach the
Primary Court if an appeal is filed against a ruling of the Clan Council.485 If a dispute cannot
be settled and one or both parties go to court, a close relative is usually sent to court to join in
the case. A research in Bukoba district showed that some women who by-passed the Clan
Council and had directly gone to the Primary Court, were sent back to the Clan Council.486
Clan elders are usually called to give evidence in court as well. The courts tend to put more
weight on the evidence and position supported by the clan. Moreover, the Primary Courts are
said to also appoint administrators who benefit, rather than the widow and her children.487 In
general, the Clan Councils are said to honour Wills, but when Wills do not conform to the
custom of the ethnic community, Clan Councils have a hard time ironing out all the
conflicting interests. For example, if a father would leave his property to his daughter or leave
it in equal shares to a daughter and a son, other relatives whose interests and rights are
compromised will protest. A Clan Council has the power to order a variation of the Will.488

4.6.6 Conclusion
Women and men enjoy equal inheritance rights under statutory law. However, the application
of this law is extremely limited. Even if awareness was raised on the possibility to apply this
law to African Christians, its application would remain limited. The Local Customary Law
(Declaration ) Order denies widows any inheritance rights, and only provides for very limited
possibilities for daughters. The High Court decision of 1989, in which customs prohibiting
women from selling clan land are ruled to be discriminatory, unconstitutional and in violation
of Tanzania’s international human rights obligations can still be considered a landmark case,
which provides women with a powerful tool to challenge such discrimination in court. In
addition, the newly adopted Land Acts prohibit the application of customary law that
discriminates women in obtaining lawful access to ownership, occupancy or use of land. The
1995 National Land Policy is more specific on inheritance, where it states in policy statement
2.3.6 that inheritance of clan land or family land will continue to be governed by custom and
tradition, “provided they are not contrary to the constitution and principles of natural
justice.” Since the amendment to the Tanzania’s Constitution in 2000, discrimination on the
basis of sex is prohibited. Therefore, discriminatory application of custom and tradition with
regard to inheritance of clan land or family land is now contrary to the Constitution.


483
    The author could obtain no more information on this law.
484
    Sections 14 and 15 of the Magistrates’ Courts Act, 1984 and the Order of the Chief Justice published as
Government Notice 320/1964, rule 2.
485
    According to Rule 18 of the Rules Governing the Inheritance of Holdings by Female Heirs of 1944,
designated Clan Councils to have the original jurisdiction in administration of estate matters and the paternal
uncle or eldest son to be administrator. As both the Order of the Chief Justice under the Magistrates’ Court Act
1984, and the Rules of 1944 are subsidiary legislation, one could argue that the Order of the Chief Justice as the
younger piece of legislation supercedes the older laws.
486
    Rwebangira and Mukogoye (1995), supra note 459, p. 20.
487
    Judge J.L. Mwalusanya, A Review on ‘Sheria Ya Mirathi - Maswali Na Majibu Kuhusu Haki za Wajane’,
Legal Aid Association, Dodoma, 1985: in M.K. Ngaiza (ed) (1994), supra note 478, p. 110-111.
488
    Ibid, p. 21-28.
134


What is needed is a uniform Succession Law, which may be applied to all Tanzanians if they
wish.489 The Law Reform Commission has worked on drafting such a succession law since
1987. Its report was submitted to the Ministry of Justice in 1995, and up to now has remained
confidential.490 Apparently, the Law Reform Commission has made clear that the Local
Customary (Declaration) Order is unconstitutional.491 The publication of this draft would be
very welcome, as an open discussion about these issues is very necessary.

The jurisdiction in inheritance cases is also too scattered, open to confusion and with too few
guarantees in place to protect widows. The uniform succession law (and not subsidiary
legislation) should be clear on which court is the first instance court in inheritance matters,
whether statutory, customary or Islamic.


4.7 NGOs and paralegal networks
The Government of Tanzania so far has only allowed three legal organisations in Tanzania
Mainland to take cases to court, by providing them with required certificates. 492 In a country
that has 112 districts, this has led to a serious situation where the majority of the population
does not have access to legal aid and advice. Below, the activities of three legal organisations,
which are doing their best to raise awareness of women’s rights and to advice their clients, are
described:

1) The Tanzanian Women Lawyers’ Association (TAWLA) has 166 members, most of whom
   are lawyers in Dar es Salaam. TAWLA runs a Legal Aid Clinic in Dar es Salaam. The
   majority of the cases received in this Clinic are cases concerning divorce and inheritance.
   TAWLA has branches in Moshi and Arusha, where member lawyers operate from their
   own offices. TAWLA also works together with the Kilimanjaro Women’s Organization
   (KIWECO). In addition, Legal Aid and Human Rights Networks have been set up.
   Members of these Networks receive a two-week training on legal and human rights issues,
   and go back to their area of residence with a training manual. TAWLA recognises that
   close follow-up is needed in order for Network members to be able to advise the people
   on legal problems. It is now aiming at training retired judges, magistrates, court clerks and
   teachers and have these opinion leaders join the Network.493

2) The Women’s Legal Aid Centre (WLAC) also runs a Legal Aid Clinic in Dar es Salaam.
   The majority of the cases they receive concern matrimonial property, child custody and
   inheritance. WLAC does not have the required certificate to go to court, but works closely
   together with TAWLA. One of the lawyers at the Women’s Legal Aid Centre (WLAC) in
   Dar es Salaam has visited Kabale, south-west Uganda through an exchange programme

489
    As is also the case in Uganda and Kenya, the Muslim communities claim a separate status for Islamic law. A
way to come to a compromise and avoid Muslim objections to a uniform succession law, is to leave the
application of a uniform succession law open to choice, but at the same time provide the opportunity for all
citizens to invoke this law if they so wish.
490
    Tanzania NGOs, Tanzania NGOs Shadow Report on CEDAW, submitted to the CEDAW Committee in June
1998.
491
    Ibid.
492
    The Tanzanian Women Lawyer’s Association, the Legal Aid Centre at the Faculty of Law of the University of
Dar es Salaam, and the Tanganyika Law Society. This requirement on certificates can be found in the Judicature
and Application of Laws Ordinance, Cap. 453 and the Court Fees (Amendment) Rules of 1966.
493
    Interview with Tumaini Silaa, Legal Officer, TAWLA, Dar es Salaam, 5 October 1999.
                                                                                                     135


      organised by the Uganda Gender Resource Centre and the Settlements Information
      Network Africa (SINA). She was impressed with the work done by paralegals in Kabale
      and especially with the paralegals’ awareness on the Constitution and Land Act, and
      brought ideas and inspiration back to Dar es Salaam. However, as Tanzania is so much
      bigger, and its constitutional review process is very different from the more participatory
      process in Uganda, paralegal activities in Tanzania are also more limited.
      WLAC’s focus is now on women’s groups, particularly in regions where a lot of
      discrimination and abuse is taking place. Needs assessments are conducted in selected
      areas, from where women who are committed to volunteer are identified. Preference is
      given to women who are employed and therefore have some income and enjoy respect in
      their communities. After identification of volunteers, five-day workshops are held, where
      training is given on women’s rights to inheritance, matrimonial property, custody and
      maintenance of children. In such workshops, up to thirty women participate. After these
      workshops, the participants established nine paralegal units in the regions of Tanga,
      Moshi, Arusha and Katesh-Arusha, Kigoma, Mbeya and Morogoro. These paralegal units
      operate in the regional towns, as the paralegals cannot afford to reach all wards and
      villages. WLAC does not operate any Legal Aid Clinics in the regional towns. Not many
      lawyers want to work in the regions for a low salary. WLAC is aiming to obtain funding
      for a full time paralegal per region. The paralegals mainly try to reconcile the parties in
      disputes. If a case needs to go to court, the paralegals try to direct their ‘client’ to the right
      place. They usually have good contacts with lawyers, court and public prosecution
      officials and can thus improve accessibility.
      The paralegals trained by WLAC have been given guidance in what to record in their case
      files. Once a year, WLAC staff members visit the regions, and then screen the files of the
      paralegals. Among themselves, the paralegals usually meet once a week to discuss their
      cases. Another day in the week, they receive individuals seeking advice. Often this
      happens in the home of one paralegal, the office of a women’s group or, in once case, a
      rented office.494
3) The Legal and Human Rights Centre (LHRC) operates two Legal Aid Clinics in Dar es
   Salaam and one in Arusha. The majority of cases handled concern: contracts, land,
   property, employment, inheritance, assault and rape. Interesting is that most of the women
   who come to the clinic with problems concerning inheritance cases are Muslim women.
   LHRC has conducted land rights training since 1996. By the end of 1999, over 120
   paralegals had been trained in Simanjiro and Kiteto Districts (in Arusha region), and 85
   were trained in Singida Rural. Focus of the land rights training has been misallocation of
   land in villages. Trainers at community level in Hanang, Mbulu, Yaeda Chini and Kiteto
   districts have been trained to raise awareness on the use of land, human rights and
   conflicts resolution between farmers and pastoralists. In Hanang, one women’s group
   (HAWOCODA) is now working as a paralegal unit. In Kiteto the women department of
   KINNAPA have made human rights training part of their work.
      More general human rights training workshops have also been held, raising awareness
      among the police, Primary Court Magistrates, civil society leaders, parliamentarians and
      political party leaders. In addition, LHRC has run a radio programme in which human
      rights issues, including land rights, are discussed.495


494
   Interview with Jane Magigita, Legal Officer, WLAC, Dar es Salaam, October 6, 1999.
495
   Interview with Helen Kijo-Bisimba, Executive Director, LHRC, Dar es Salaam, October 7, 1999; interview
with John Wallace, Legal Officer, LHRC, Dar es Salaam, March 4, 2001; Legal and Human Rights Centre, 1999
Annual Report, pp. 4-14.
136




      The “CEDAW” Convention explained in Kiswahili - one of WLAC’s posters.
                                                                                             137


4.8 Conclusion
Tanzania’s Constitution lacks crucial provisions, such as a provision declaring customary laws
void to the extent that they discriminate against women; a provision recognising widow’s
equal inheritance rights; a provision enshrining greater affirmative action for women in
positions of (local) government and Parliament, and its language is not gender sensitive.

The Land Acts provide an impressive number of provisions that women can use to obtain their
equal rights. Implementation of these Acts and country wide awareness raising on the rights
contained in these laws are crucial.

The adoption of by-laws that declare customary practices discriminating against women
unlawful would also help in bringing these laws closer to the people.

While the Law on Marriage Act of 1971 gives women a stronger position in marriage and co-
habitation than for example Uganda, it still does not amount to women’s equal rights as to,
during and upon dissolution of a marriage, which are human rights.

Succession and inheritance in Tanzania Mainland today are characterised by the co-existence
of different systems of law; their application depends on ethnicity, race, religion or mode of
life. This complex system gives rise to conflicts and difficulties in choosing which law to use.
In addition, the implementation of Tanzania’s international obligations (CEDAW, CRC etc.) is
in question when the majority of its population cannot enjoy their human rights. A uniform
succession law is necessary. As a start, the draft succession bill as drafted by the Law Reform
Commission should be published and openly debated. In addition, awareness raising on
women’s inheritance rights is an urgent priority.

The Law of Persons, Rules of 1944 and the Customary Law Declaration Order of 1963 all
need to be repealed to the extent that they discriminate against women, and their useful
provisions could be incorporated in the Law on Marriage Act, and a uniform succession law.

The composition of courts, dealing with land disputes, matrimonial suits and inheritance cases
need to be gender balanced.

Many more organisations should be allowed to provide legal aid. Tanzania is a huge country
and even if a relatively decentralised legal system is in place, the people would still benefit
greatly from legal aid and advice.
138

				
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