Tanzania’s customary inheritance law, as codified in the Local Customary Law (Declaration) (No. 4) Order, establishes patrilineal inheritance rules. E.S. and S.C. are Tanzanian nationals, who entered into customary marriages. When their respective husbands died, they were evicted from their homes by their husbands’ families, did not inherit any of their husbands’ estates and were denied the right to administer the estates.
E.S. and S.C. started legal proceedings requesting that the customary inheritance provisions be struck down on the basis that they contravene the constitutional guarantee of non-discrimination and equal protection and international human rights law, including CEDAW. In 2006, the High Court held the provisions were discriminatory. However, it denied E.S. and S.C. relief and did not overturn the provisions, saying that effecting customary change by judicial pronouncements would open Pandora’s box. According to the Court, the best remedy was to recommend, rather than order, the district councils to amend the provisions.
In 2006, E.S. and S.C filed a notice of appeal, but the Attorney General and Court of Appeal did not respond. In 2007, they submitted a memorandum of appeal in which they requested the Court of Appeal to quash the High Court judgment and declare the impugned provisions unconstitutional, but there was no response. In 2009, they asked the Court’s Chief Justice to decide their appeal quickly, but again received no response. In 2010, they filed a certificate of urgency in which they urged the Court to hear their appeal. The Court said it would list the appeal during its next session. In their written submissions, E.S. and S.C claimed that the High Court erred in abdicating its responsibilities to declare the impugned provisions unconstitutional, despite finding they discriminated against women. The Court dismissed the appeal on a procedural technicality concerning dates on court documents not attributable to E.S. or S.C. and which they later sought to have remedied without success.
E.S. and S.C. subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women, in which they claimed that the State Party had violated articles 2(c), 2(f), 5(a), 13(b), 15(1), 15(2), 16(1)(c) and 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women, read together with the Committee’s General Recommendations Nos. 21 and 27. Specifically, E.S. and S.C. claimed that they were:
- discriminated against based on their sex/gender and therefore denied the ability to administer and inherit property after their husbands’ deaths and an effective remedy, in violation of articles 2(c), 2(f) and 5(a) of CEDAW
- denied equal economic rights and opportunities, including access to mortgages and other forms of financial credit, in violation of article 13(b)
- denied equality before the law, in violation of article 15(1)
- prevented them from administering their husbands’ property, as their legal capacity was not recognised, in violation of article 15(2)
- not afforded the same rights as men in the administration and inheritance of property upon the dissolution of marriage, in violation of articles 16(1)(c) and 16(1)(h).
E.S. and S.C. urged the CEDAW Committee to recommend that the State Party permit them to inherit their equal share of their husbands’ estates and serve as estate administrators, and compensate them for their financial and emotional loss. Furthermore, they called on the Committee to recommend that the discriminatory inheritance provisions be abolished or, alternatively, that a law be enacted to guarantee women equal rights to administer and inherit property.
State Party’s observations on admissibility and merits
The State Party made no observations on the admissibility or merits of the communication.
Committee’s decision on admissibility
The CEDAW Committee declared the communication admissible, having found that E.S. and S.C. had sufficiently substantiated their claims, for the purposes of admissibility. It also determined that domestic remedies had been unreasonably prolonged, within the meaning of article 4(1) of the Optional Protocol, and were unlikely to bring E.S. and S.C. effective relief. It explained that the Court of Appeal: had still not examined the appeal submitted by E.S. and S.C. in 2006; took four years to schedule a hearing; and summarily dismissed the appeal due to a minor defect, which was not attributable to E.S. and S.C. and which they sought to remedy several times.
Committee’s views on merits
The CEDAW Committee determined that the State Party violated articles 2(c), 2(f), 5(a), 13(b), 15(1), 15(2), 16(1)(c) and 16(1)(h) of CEDAW, read together with General Recommendations No. 21, No. 28 and No. 29. In doing so, it recalled that States Parties must:
- adopt appropriate measures to amend or abolish customs that discriminate against women, in line with articles 2(f) and 5(a)
- adopt appropriate measures to eliminate discrimination against women in marriage and family relations, including at the inception of, during, and at the dissolution of, marriage, in line with article 16
- adopt intestate succession laws that ensure equal treatment of surviving women and men and prohibit disinheritance of the surviving spouse
- afford women equal rights to administer property, consistent with articles 15(2) and 16(1)(h), which in the Committee’s view ‘is central to their financial independence and may be critical to their ability to earn a livelihood and to provide adequate housing and nutrition for themselves and for their children, especially in the event of the death of their spouse’
- take appropriate measures to eliminate discrimination against women in economic and social life, particularly regarding their right to bank loans, mortgages and other forms of financial credit, in line with article 13.
The Committee further recalled that the application of discriminatory customs perpetuates stereotypes and attitudes about the roles and responsibilities of women and prevents them from enjoying equality in the family and in society.
Turning to the facts of the communication, the Committee determined that:
- the State Party’s legal framework, which treats widows and widowers differently in terms of their access to ownership, acquisition, management, administration, enjoyment and disposition of property (despite a constitutional guarantee of non-discrimination and equality) discriminates against women and led to E.S. and S.C. being unable to administer their husbands’ estates or inherit their husbands’ property, in violation of article 2(f) of CEDAW, together with articles 5, 15 and 16
- the actions of the judiciary, including the refusal to impugn the customary law provisions (despite finding they were discriminatory), a four-year failure to respond to the appeal and the dismissal of the case on a procedural technicality not attributable to E.S. or S.C., violated article 2(c) of CEDAW
- the eviction of E.S. and S.C. when their respective husbands died left them economically vulnerable, which restricted their economic autonomy and prevented them from enjoying equal economic opportunities, in violation of article 13 of CEDAW.
The Committee concluded that the State Party, by condoning the legal restraints on women’s inheritance and property rights, denied E.S. and S.C. equality in respect of inheritance and failed to provide them with other means of economic security or adequate redress.
The Committee recommended that the State Party provide E.S. and S.C. adequate reparation and compensation, commensurate with the seriousness of the violations of their rights. It also made several recommendations of a general nature, including that the State Party: ensure CEDAW has precedence over discriminatory customary laws; repeal or amend discriminatory customary laws, including on inheritance, to bring them in line with CEDAW; and hold consultations to foster dialogue on removing discriminatory customary laws.