An Equal Right to Inherit? Women’s Land Rights, Customary Law and Constitutional Reform in Tanzania

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 interpretations of living customary law.

Supporting women's empowerment by changing intra‐household decision‐making: A mixed‐methods analysis of a field experiment in rural south‐west Tanzania

“…Although formal rights have been strengthened, de facto women's rights to acquire or inherit land and property or keep these after divorce or widowhood remain weak and insecure in Tanzania, particularly in rural areas where customary law prevails (Badstue et al., 2021; Lecoutere, 2016; Peterman, 2011). For instance, according to customary law, a woman's access to and benefits from land (especially clan land) depend on her relationship to a male heir (Dancer, 2017; United Republic of Tanzania, 2002). The Marriage Act sets out that, upon divorce, a woman retains rights to any property she brought into the marriage.…”

Rural women's access to land: An appraisal of land rights campaigns in Missenyi district Tanzania

“…Several African countries have promulgated legal statutes to address women's lack of land rights. On the other hand, Dancer (2017) recognises African countries, including Tanzania, as being recommended to improve and reinforce laws that discriminate against women in various spheres. Nevertheless, McFerson (2010) submits that unfortunately, most African countries do not implement measures of correct law enforcement.…”

“…On the above views, some scholars like Dancer (2017) and Kameri-Mbote (2005) claimed that currently, many countries have formulated laws that protect women from land access in their societies. International and national bodies are struggling to eradicate this belief that undermines women, especially rural women who depend mostly on land as a means of survival.…”

Land markets and migration trends in Tanzania: A qualitative‐quantitative analysis

“…Nevertheless, clan members retained the option to later redeem a farm sold to outsiders by repaying the purchase price to the buyer (Weiss, ; Manji, ). Recent years have seen a gradual loosening of lineal ties to land and a concurrent growth of sales and rental markets in parts of Tanzania (Dancer, ). Reflecting this trend, a majority of rural households in our study site are found to possess purchased land, with almost no plots carrying either a formal title or a Certificate of Customary Right of Occupancy (Wineman & Liverpool‐Tasie, ).…”

“…This remains the case under the 1999 Land Acts, with customary (“traditional”) and statutory (“formal”) laws co‐existing within a system of legal pluralism (Odgaard, ). In the Kagera region, land can be loosely classified as being either clan land (vested in the clan, which is an extended lineage within a tribe), family land (characterized by family‐level ownership and transferred through inheritance) or self‐acquired land (obtained through individual efforts) (Manji, ), and each type is associated with varying levels of autonomy over disposal (Dancer, ). Self‐acquired (for example, purchased) land can be readily resold on the land market, whereas clan land is subject to the greatest clan oversight, with possible restrictions or prohibitions on sales.…”