Posted here on 21 September, 2012.
Tanzania: Court throws out petition...
Source: By Judica Tarimo, Guardian, 9 September, 2006.
The Guardian - Tanzania
On 8th September 2006, The High Court
of Tanzania rejected a petition by human rights activists to declare the
customary inheritance law unconstitutional.
A panel of high court judges
comprising justices Salum Masati, Augustine Shangwa and Thomas Mihayo,
said the court had declined to grant a request by the petitioners,
Elizabeth Stephen and Salome Charles, both residents of Shinyanga
Region.
The two are widows who claimed to have been denied their rights to inheritance.
Reading the verdict, Justice Thomas Mihayo said, the court admits that the customary inheritance law was flawed and actually discriminates against widows and female children. However, it could no be declared unconstitutional.
”The court declines to grant orders as proposed by the petitioners,” said Justice Thomas Mihayo.
The petitioners had wanted the court to direct the Attorney General to make some necessary amendments on the customary law, pay the cost of denying them their basic and constitutional rights, and finally declare the Customary Law (Declaration Order) N0. 4 of 1963 unconstitutional.
The case was filed by Women Legal Aid Centre (WLAC) on behalf of the petitioners.
On the list of petitioners’ counsel included, Geneviene Kato (lead counsel), Nakazael Lukio Tenga, Julius Ndyanabo, Eugence Mniwasa, Bahame Nyanduga, Alphonce Katemi and Mohamed Tibanyendera. Others are Athanasia Soka, Alex Mgongolwa, Magdalena Rwebangira, Jessie Mngoto, and Maria Kashonda.
The Attonery General was represented by the State Attorney, Mixon Ntimbwa.
Counsel representing the petitioners challenged the constitutionality of the customary laws, saying it denied widows their rights to inherit properties of their deceased husbands, contrary to the country’s Constitution and international human rights conventions.
According to the evidence tendered in court, Sukuma customary laws allowed relatives of the deceased husbands to chase them out of their estates.
The counsel wanted the court to declare the customary laws null and void on the grounds that it discriminated against widows and female children, during the distribution of inheritance property.
The law also offered lions’ shares to boys compared to daughters,in the course of inheritance distribution process .
But justice Mihayo, said there were other remedies through which the affected widows could access their rights, instead of declaring the law unconstitutional.
The court said nullification of the law would create confusion amongst members of different societies because Tanzania has many tribes.
”If the court accepts these proposals, other people from different tribes would file similar cases, challenging their customs,” noted Mihayo.
The court provided options to the petitioners to pursue their cases - submit their proposals to the district councils, which will recommend to the responsible minister to modify a certain customary law.
”If the minister accepts the proposals, he may publish them in the government gazette or make some amendments on the laws to suit public interests,” said Justice Mihayo.
But the petitioners’ counsel said the would appeal. ”We are not satisfied with the ruling; we are going to the Court of Appeal very soon,” said Alex Mgongolwa.
Reading the verdict, Justice Thomas Mihayo said, the court admits that the customary inheritance law was flawed and actually discriminates against widows and female children. However, it could no be declared unconstitutional.
”The court declines to grant orders as proposed by the petitioners,” said Justice Thomas Mihayo.
The petitioners had wanted the court to direct the Attorney General to make some necessary amendments on the customary law, pay the cost of denying them their basic and constitutional rights, and finally declare the Customary Law (Declaration Order) N0. 4 of 1963 unconstitutional.
The case was filed by Women Legal Aid Centre (WLAC) on behalf of the petitioners.
On the list of petitioners’ counsel included, Geneviene Kato (lead counsel), Nakazael Lukio Tenga, Julius Ndyanabo, Eugence Mniwasa, Bahame Nyanduga, Alphonce Katemi and Mohamed Tibanyendera. Others are Athanasia Soka, Alex Mgongolwa, Magdalena Rwebangira, Jessie Mngoto, and Maria Kashonda.
The Attonery General was represented by the State Attorney, Mixon Ntimbwa.
Counsel representing the petitioners challenged the constitutionality of the customary laws, saying it denied widows their rights to inherit properties of their deceased husbands, contrary to the country’s Constitution and international human rights conventions.
According to the evidence tendered in court, Sukuma customary laws allowed relatives of the deceased husbands to chase them out of their estates.
The counsel wanted the court to declare the customary laws null and void on the grounds that it discriminated against widows and female children, during the distribution of inheritance property.
The law also offered lions’ shares to boys compared to daughters,in the course of inheritance distribution process .
But justice Mihayo, said there were other remedies through which the affected widows could access their rights, instead of declaring the law unconstitutional.
The court said nullification of the law would create confusion amongst members of different societies because Tanzania has many tribes.
”If the court accepts these proposals, other people from different tribes would file similar cases, challenging their customs,” noted Mihayo.
The court provided options to the petitioners to pursue their cases - submit their proposals to the district councils, which will recommend to the responsible minister to modify a certain customary law.
”If the minister accepts the proposals, he may publish them in the government gazette or make some amendments on the laws to suit public interests,” said Justice Mihayo.
But the petitioners’ counsel said the would appeal. ”We are not satisfied with the ruling; we are going to the Court of Appeal very soon,” said Alex Mgongolwa.
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