An Equal Right to Inherit? Women’s Land Rights, Customary Law and Constitutional Reform in Tanzania
| Published date | 01 June 2017 |
| Author | Helen Dancer |
| DOI | 10.1177/0964663916677560 |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(3) 291–310
An Equal Right to
ª The Author(s) 2017
Reprints and permission:
Inherit? Women’s Land
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DOI: 10.1177/0964663916677560
Rights, Customary Law
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and Constitutional
Reform in Tanzania
Helen Dancer
University of Brighton, UK
Abstract
This article explores contemporary contestations surrounding women’s inheritance of
land in Africa. Legal activism has gained momentum, both in agendas for law reform and
in test case litigation, which reached the United Nations Committee on the Elimination
of Discrimination against Women in ES and SC v. United Republic of Tanzania. Comparing
the approach of Tanzania to that of its neighbours, Uganda, Kenya and Rwanda, this
article explores patterns of resistance and omission towards enshrining an equal right to
inherit in land and succession laws. It identifies two main reasons: neoliberal drivers for
land law reform of the 1990s and sociopolitical sensitivity surrounding inheritance of
land. It argues that a progressive approach to constitutional and law reform on women’s
land rights requires understanding of the realities of claims to family land based on
kinship relations. It calls for a holistic approach to land, marriage and inheritance law
reform underpinned with constitutional rights to equality and progressive interpreta-
tions of living customary law.
Keywords
Africa, CEDAW, constitution, customary law, gender, inheritance, land, Tanzania,
women
Corresponding author:
Helen Dancer, University of Brighton, Mithras House, Lewes Road, Brighton, BN2 4AT, UK.
Email: h.dancer@brighton.ac.uk
292
Social & Legal Studies 26(3)
Introduction
This article explores the contested legal frontier of women’s land rights in Africa. In
2013, activism surrounding an equal right to inherit land reached the international arena
in the constitutional test case of ES and SC v. United Republic of Tanzania, when the
United Nations Committee on the Elimination of Discrimination against Women (the
CEDAW Committee) considered a claim brought on behalf of two Tanzanian widows.
Such high-level legal battles by women are hard-fought, not least because in the majority
of African countries the issue of enshrining an equal right to inherit land is one that has
faced considerable resistance. This article explores reasons behind this resistance and a
pattern of omission by African states to fully integrate women’s inheritance of land into
land law reform agendas. It argues for acknowledgement of the realities of claims to
family land based on kinship relations and explores how women’s inheritance rights
could be integrated into statutory and constitutional reforms in future.
The pattern of omission is evident in many African countries. However, this article
focuses on the East African context and Tanzania in particular, where the issue has been
brought to international attention through the recent CEDAW Committee recommendation
and national constitutional debates. For decades, Tanzania had been at the forefront of
African countries in introducing some of the most progressive reforms on women’s property
rights, including the Law of Marriage Act of 1971 and the Land Act and Village Land Act of
1999 (the Land Acts). Pending a referendum, Tanzania’s proposed Constitution of Septem-
ber 2014 (CRC, 2014) includes a new set of rights provisions to protect specific social
groups, including women, and a clause enshrining women’s equal rights to land. However,
reform to laws of inheritance and succession, including codified customary laws, remains a
particular sticking point for the legislature and has been left almost untouched.
This article first contextualizes family landholding and the ways in which social prac-
tices have been constructed through various forms of customary law in Tanzania. It then
analyses three different approaches to recognizing an equal right to inherit land in law –
legislative, constitutional and judicial. The article explores in detail the recent CEDAW
recommendation in ES and SC v. United Republic of Tanzania and its implications for law
reform in Tanzania. Comparisons are drawn between Tanzania and Kenya, Uganda and
Rwanda, where constitutional and land law reforms have taken place in recent years. It is
observed that there have been two main factors behind the reticence to integrate gender
equality into inheritance law reform: neoliberal economic drivers for African land law
reform of the 1990s and sociopolitical sensitivity and power relations surrounding inheri-
tance of land. In the context of Tanzania, both the proposed constitution and current review
of the National Land Policy offer opportunities for reform in this area. The article explores
how law reformers could approach the recognition of customary claims to family land based
on kinship relations through a holistic approach to statutory law reform, a constitutionally
enshrined equal right to inherit and progressive interpretation of living customary law.
Family Land and the Construction of Customary Law
This section analyses the ways in which Tanzanian citizens acquire interests in land,1 the
social and legal meanings ascribed to these various modes of acquisition, and the
Dancer
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implications for individual autonomy. Each of the ways is embedded in its own distinc-
tive social, legal or political rationale. First, inheriting land, whether through lineal
descent, a will or religious norms, remains one of the most common means of acquiring
an interest in land. Second, in areas where land is available, village governments also
have the power to allocate village land to their citizens (both women and men). Such
practices were historically associated with Ujamaa (African Socialism) and the villagi-
zation policies of the 1960s, but the Land Acts have continued to provide for villages to
allocate land to this day. Third, individuals or married couples may ‘self-acquire’ their
interests in land through purchase, lease or by making permanent improvements to the
land through clearance and cultivation on the basis of adverse possession. Across these
various modes of acquisition, there is significant variation in the nature and extent of
family and community interests over the land, and the degree of autonomy that an
individual may have to use or dispose of it. Individuals have a large measure of control
over land they have acquired for themselves, and spouses have shared rights in jointly
acquired matrimonial property.2 In contrast, land passed between the generations of a
large family is regarded as family or clan land (James and Fimbo, 1973: 427). This
ascribes certain gendered and intergenerational ties to the land and limits the power of an
individual concerning allocation and disposition.
In practice, the availability of these modes of acquisition varies according to the
social and economic resources of individuals and families, demographic and commercial
pressures on land and practices of landholding in a particular area. For example, in fertile
agricultural regions of Tanzania, such as Kilimanjaro, Arusha and Kagera, demand for
land is high and historically, customary family connections to the land have been strong
and based on patrilineal principles (Cory and Hartnoll, 1945; Dancer, 2015; Gulliver,
1963; Manji, 2000; Moore, 1986; Moore and Puritt, 1977; Spear, 1997). However, socio-
economic change, including greater educational and employment opportunities for men
and women, commercial investment and rapid urbanization have generated markets for
the sale and lease of land and a gradual loosening of lineal ties to the land in these and
other areas.
It is estimated that around 80% of ethnic groups within Tanzania follow patrilineal
customary principles of marriage and inheritance, the remainder being based on matri-
lineal principles (Tenga, 1988). Historically, there has been comparatively little research
on the practices of matrilineal communities in Tanzania (e.g. Dondeyne et al., 2003;
Englert, 2003; Koda, 1998). In Dondeyne et al.’s study of Chiwambo village, south-
eastern Tanzania, it was found that while lineage practices followed the female line,
inheritance patterns were bilineal and marriage practices were patrilocal. In November
2012, the Law Reform Commission of Tanzania completed a survey of customary laws
of matrilineal communities in Mtwara, Lindi and Morogoro regions. The results were
compiled in an unpublished report submitted to the Minister for Constitutional and Legal
Affairs as part of a wider review of customary laws (LRCT, 2013). By comparison, in
patrilineal areas, while practices vary, family and clan land is customarily heritable by
men, with women acquiring their interests in land through their husbands.
In both patrilineal and matrilineal systems, customary land tenure practices are
closely linked to significant life events such as marriage, separation and divorce, or
death of a husband or father. Land may be allocated inter vivos, for example, to a son
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Social & Legal Studies 26(3)
at the time of his marriage or after the death of a father. In some areas, case studies in
patrilineal communities have also documented practices of allocating land to daughters
(Dancer, 2015: 43–44; Odgaard, 1999; Tsikata, 2003; URT, 1994: 251). This may be, for
example, because they remain unmarried or their father has no sons. Unless a widow is
appointed as the administrator of her husband’s estate, her access to land becomes
contingent on her relations with the man appointed to take care of the...
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