Women’s rights and customary wrongs

One of the greatest challenges facing women in much of the world is the gap between their legal rights and their ability as individuals to claim them. National constitutions are increasingly likely to guarantee gender equality, but many also recognise the authority of parallel legal systems based on custom, religion, or ethnic affiliation. And, unfortunately, law in many parts of the world has not kept up with changing times.

Fortunately, international human rights bodies are taking notice of the gap. In 1999 and 2000, two young Tanzanian tailors, married in their teens and widowed in their twenties with four children between them, were dispossessed of their homes under their ethnic group’s customary laws of inheritance. Those customary laws give male relatives a greater claim to the deceased’s possessions than female members of his family, and typically bar wives altogether and give short shrift to daughters. In both of the Tanzanian cases, local courts ruled that the property the woman had shared with her husband, including items that had been purchased with proceeds from her labour, should go to her brother-in-law.

The young widowed tailors were left homeless with their children, but they refused to accept their dispossession. With the help of Tanzania’s Women’s Legal Aid Centre and Georgetown University’s International Women’s Human Rights Clinic — which I previously directed — they challenged the decision in the High Court of Tanzania. In 2006, the high court concluded that customary laws on inheritance were “discriminatory in more ways than one”, but it refused to overturn them. The court likened doing so to “opening a Pandora’s box, with all the seemingly discriminative customs from our 120 tribes” vulnerable to legal challenge.

The women ultimately took their case to the United Nations, where they have now struck a historic victory for equality for millions of women around the world. Tanzania is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its protocol. That allowed the two women to take their complaint to the committee that oversees states’ compliance with the treaty’s implementation.

On March 15, the UN committee declared that Tanzania had violated its international human-rights obligations. “The right of women to own, manage, enjoy, and dispose of property,” the committee ruled, “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.” 

The committee asserted that, in order to comply with the treaty’s human rights mandate, Tanzania would have to repeal and amend customary inheritance laws that discriminate against women. It also recommended that the country educate women about their rights under CEDAW and train judges, lawyers, local authorities and traditional leaders in order to build support for removing discriminatory practices from customary law. The government of Tanzania has until September to respond to the ruling.

The decision could have a huge impact, for the problem the Tanzanian case exposed is all too common in many parts of Africa and Asia. India, for example, enacted legislation 10 years ago to provide sons and daughters with equal claim to inherit family land in most situations. And yet a survey of women in three rural Indian states by the international land rights NGO Landesa found that two-thirds did not know of any woman who had inherited land from her parents. One in four did not know that they had a right to inherit family land.

There is much more at stake in inheritance rights than who gets the house, the car and the sewing machine. Research shows that women’s rights to own and inherit property, including land, are critical to breaking the cycle of poverty. A study in Tanzania, for example, found that women earned near four times more in areas with strong women’s land rights. And a study in Nepal found that children whose mothers owned land were 33 per cent less likely to be malnourished. The benefits are much more than economic: In India, women with secure rights to land were found to be eight times less likely to suffer domestic abuse.

The UN ruling has buoyed the hopes of women worldwide that their countries will be forced to address the injustices that may be found in some customary law and where bias hinders implementation of progressive legislation. Legislators in South Africa and Kenya have been grappling with the issue. Tanzania and countries in similar situations must demonstrate their commitment to women’s rights by eliminating systematic discrimination. When they do, the two widows’ story will end on a note of empowerment not just for them, but for women and communities everywhere.

The writer is director of the Landesa Centre for Women’s Land Rights. ©Project Syndicate, 2015. www.project-syndicate.org