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WOMENS PROPERTY RIGHTS IN TANZANIA. By: Ndemno, Neema Olle.

Throughout history, women have been victims of torture, disenfranchisement, female genital mutilation and gender based violence. This paper will deal with women property rights in Tanzania. That is to say the background of womens property rights in Tanzania, the current situation as well as the relevance and recommendations to the government and activists. BACKGROUND OF THE WOMENS PROPERY RIGHTS IN TANZANIA. The property means anything physical owned by a person or group of persons who can freely use, sell or rent the same without external influence 1. It also includes both movable and immovable property. For the purpose of this paper, property means immovable property. Previously women had nothing to own, that is to say women did not have the right to own property. Males inherit movable and immovable properties absolutely, but females inherit immovable property only for their use during their life time2. This is simply because women were not equal as men. Therefore the rights to own property were given to men only and not women. The saying that law comes from the society or comes from the customs is proved here. The customary law did not allow women to inherit immovable property. Rule 203 provides thus women can inherit, except for clan land, which they may receive in usufruct but not to sell. However womens property right was not only in inheritance but also in marriage property, the house wives were not entitled to the equal division of property in the case of divorce and separation. Before the case of Bi Hawa Mohamed v. Seif Ally house wives were not entitled to division of matrimonial property.

DEVELOPMENT OF HUMAN RIGHTS IN TANZANIA. Further, we cannot separate womens rights to own property with the development of human rights in Tanzania. It has to be born in mind that soon after independence
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LHRC (2011) Tanzania Human Rights Report of 2011, page 120. The Local Customary law Declaration Order, No. 4/1963 3 Local Customary Law (Declaration) (No.4) Order 1963, GN. 436 of 1963.

human rights was not part of our laws. Therefore it was difficult to challenge discriminatory laws. Fortunately the amendments of the Constitution of United Republic of Tanzania in 1984 recognized the bill of rights4. From there people had the legal base to challenge the discriminatory laws. Mwalusanya, J (as he then was) declared this custom as being discriminatory and unconstitutional for being inconsistent with article 13(4)of our constitution which bars discrimination on account of sex5. THE CURRENT SITUATION. The Universal Declaration of Human Rights of 1948 played a big role in the development of human rights worldwide. Various states signed different conventions. Tanzania as the member of UN is bind to adhere the principle of pacta sunt servanda whereby every treaty in force is binding upon the parties to it and must be performed by them in good faith6. However, Tanzania is also bound by the principle of jus cogens that is the principle of no derogation7. The amendment of the Constitution of United Republic of Tanzania in 1984 was a landmark in the history of human rights in Tanzania. Since then the bill of rights was made party in the constitution8. RIGHT OF PROPERTY. The right to own property especially in women was not explained clearly in the constitution. But as long there are right to equality and right to own property we can use these provisions to defend right to own property more especially to women. The provision of the constitution states that all persons are equal before the law and are entitled, without discrimination, to protection and equality before the law9. This is to say that all people are free and equal before the law regardless of their sex.

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Article 12 29 of the Constitution of United republic of Tanzania,1977 ( as amended from time to time). The case of Bernado Ephrahim v. Hollaria Pastory and Gervazi Kazirege (PCC) Civil Appeal No. 70 of 1989 (unreported). 6 Article 26 of the Vienna convention on the Law of Treaties 1969. 7 Article 53 of Vienna Convention on the Law Treaties 1969. 8 Article 12 29 of the Constitution of United Republic of Tanzania of 1977. 9 Article 13 (1) ibid

Furthermore, the Constitution clearly provides that every person is entitled to own property, and has a right to the protection of his property held in accordance with the law.10 The bolded words in this provision put more emphasis. Therefore the right to own property is the right to every person without discrimination. The mother law (Constitution) did not discriminate women from owning property. If there is a conflict between constitution and other law the constitution will prevail.11 Judiciary has also played the big role in the protection of womens rights. Various judgments has been ruled and become the law (precedents). For example the case of NDEWAWOISIA D/O NDEAMTZO V IMMANUEL MALASIA12, Saidi, J, as he then was, declared rule 2013 unconstitutional and further said, it is clear that this traditional custom has outlived its usefulness. The age of discrimination based on sex is long gone and the world is now in the full of equality of all human beings irrespective of their sex, creed, race or colour. THE LAW OF MARRIAGE ACT, 1971. The law of Marriage Act divides three forms of property rights in marriage, namely: (i) Property acquired before the marriage (ii) Property acquired in the name of one of the spouse during the subsistence of the marriage. (iii) Matrimonial property. Property acquired in the name of the spouses or through their joint efforts. PROPERTY AQCUIRED IN THE NAME OF ONE SPOUSE. There is no specific provision under the Law of Marriage Act governing this property. However, there is ample statutory authority for the proposition that each party to marriage has a right to maintain ownership of the property they acquired before entering into marriage. Section 58 provides a marriage shall not operate to change the ownership of any property too which either husband or wife may be

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Article 24 ibid Article 13(2) ibid. no law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect. 12 1968) H.C.D 127 13 The Local Customary Law (Declaration) No. 4. Order 1963 GN. 436 of 1963.

entitled or to prevent either the husband or the wife from acquiring, holding and disposing of any property. This section bring about two principles: (i) A married woman has the right to own property whether movable or immovable. This principle enable the woman to maintain ownership of the property she acquired before getting into marriage and to acquire more property. The section also re enacts the general principle relating to private property, that is, an owner of the property has a right to deal with the property in any manner he deems fit.

(ii)

PROPERTY ACQUIRED IN THE NAME OF ONE SPOUSE DURING THE SUBSISTANCE OF THE MARRIAGE. Section 60 provides where during the subsistence of marriage any property is acquired in the name of the husband or the wife there shall be a rebuttable presumption that the property belongs absolutely to that person to the exclusion of his or her spouse14. However, this is a presumption which can be rebutted by the production of evidence that the said property was jointly acquired. In the case of SAMWEL OLUNGA IGOGO AND TWO OTHERS V SOCIAL ACTION TRUST FUND AND OTHERS15, the court held that when the immovable property is registered in the name of one of the spouses, the there must be proof to the required standard of joint contribution. This is on the balance of probabilities.

MATRIMONIAL PROPERTY According to section 60(b)16 provides where during the subsistence of the marriage, any property is acquired in the names of the husband and wife jointly,
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Section 60 (a) of the Law of Marriage Act 1971, Cap 29. [2005] TLR 343 16 Cap. 29 Law of Marriage Act

there shall be a rebuttable presumption that their beneficial interests therein are equal. The Issue of Contribution. In Tanzania the issue of contribution, where a spouses contribution to the welfare of the family has been held to be a contribution in the acquisition of the family property and thus qualifying such party to a share in the matrimonial assets. The case of BI HAWA MOHAMED V ALLY SEFU17 the court of appeal had the following observation, on examination of the Law of Marriage Act, 1971, and the law as it existed before its enactment, one cannot fail to the notice that the mischief which the law of Marriage Act, 1971 sought to cure or rectify or rectify was what may be described as the traditional exploitation and oppression of marriage women by their husband It is apparent that the Act seeks to liberate married women from such exploitation and oppression by reducing the traditional inequality between them and their husband in so far as their domestic rights and duties are concerned.

ENFORCEMENT OF HUMAN RIGHTS IN TANZANIA Generally there are two ways of enforcing human rights in Tanzania namely (a) Through adjudication (b) Through reporting to the commission for human right and good governance The parliament enacted the law dealing with the enforcement of human rights and that is THE BASIC RIGHTS AND DUTIES ENFORCEMENT ACT18 this law specifically deals with the enforcement of human rights or article 12- 29 of the Constitution. Further this law provides that the only court to determine cases of human rights is the High court of Tanzania19 Note. It has to be borne in mind that the right to own property is within the meaning of article 12- 29 of the Constitution of United Republic of Tanzania.
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[1983] TLR 32. Cap 3 of 1994 19 Section 4 and 8 of the Basic rights and Duties Enforcement Act,1994

RELEVANCE OF THE LAW AND RECOMMENDATIONS. It is true that the law is clear and even the precedents played the big role in the salvation of women more especially in the right to own property as shown above. Although the law is there, still in the rural areas women are suffering. They are discriminated by the customs and traditions. Unfortunately among the major sources of law in Tanzania customary law is the source of law in Tanzania that is why some of these discriminatory customs get strength. We have heard a lot of cases and complaints for instances in maasai tribe kurya tribe and haya tribe where soon after the death of the husband, wives are not allowed to inherit anything. The husbands relatives distribute the matrimonial properties as if they are the owners leaving the wife and children with nothing and sufferings. It is my call to the government to first to amend these discriminatory laws such as the Probate and Administration of Estate Act20which allows for the implementation of discriminatory laws under section 92(1). And the Customary Law (Declaration) Order21 denies widows the rights to inheritance22. However the government must put the strength on people awareness of the law, re researches shows that most of the citizens especially women are ignorant with the law. This made them to too much suffering to the society. A certain philosopher once said if you punish the people for the law they are not aware of is to do unjust to them therefore publish the law so that can be known to the people23. I believe that the struggles to justice tend to take time and need courage, commitment, dedication and determination. I therefore call upon all feminist activists, politicians in the country to join forces until equality becomes a reality

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Cap 352 RE 2002 Cap 358 RE 2002 22 Legal and Human Right Centre Report 2011 at pg 133 23 Prof. Lon Fuller

at all level. The only way these discriminative laws will be struck out the Constitution that guarantees womens rights.24

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Legal and Human Rights Centre Report 2011 at 133