The UN’s Rebuke of Inheritance Laws Is a Victory for Women’s Health

Factors like high HIV prevalence have led to a large number of very young widows, many of whom are left homeless and destitute by their in-laws.

Estelle (not her real name) had a good life as a tailor and a mother of three children, living in a home she acquired with her husband. But when her husband passed away, Estelle, like many Tanzanian widows, soon found that she and her three young children were homeless.

When the court named her brother-in-law the administrator of her property, he seized it and began renting it out for profit. Under customary law, widows may inherit nothing from their husbands, women and girls cannot inherit clan land, and sons inherit more than daughters. 

Estelle had no choice but to leave town and move in with her parents in a neighboring district.

This story is all too common throughout sub-Saharan Africa. Factors like high HIV prevalence have led to a large number of premature deaths and, in turn, very young widows—many of whom are left homeless and destitute by their in-laws.

HIV only magnifies the consequences of discriminatory property and inheritance laws. According to UNAIDS, “One of the most serious economic effects of HIV for women has been the loss of property.” Women’s inability to own and inherit property leads to both HIV vulnerability and greater difficulty coping with the virus.

Economically dependent on men, women are less able to take steps to protect themselves from infection. They may be trapped in abusive relationships and, upon a husband’s death, be forced to participate in polygamy or marry a relative of their late husband to survive.

Rather than accept this as inevitable, however, Estelle fought back.

With the help of Tanzania’s Women’s Legal Aid Centre and Georgetown University’s International Women’s Human Rights Clinic, she and another widow initiated court proceedings to challenge the system of discriminatory inheritance laws. They argued that these laws violated Tanzania’s constitution and its obligations under international human rights treaties it had ratified.

The court agreed, acknowledging that these laws were “discriminatory in more ways than one.” But it refused to take any action, fearing that doing so would open “a Pandora’s box” of challenges to numerous discriminatory customs.

Undeterred, Estelle pushed forward, appealing the decision. Yet this appeal was never heard. Four years passed before the Court of Appeal pointed out a clerical error that stymied the case—an inconsistency in the dates in the lower court’s order. Over the next two years, Estelle repeatedly requested a corrected order to no avail.

Estelle next turned to the United Nations committee responsible for monitoring state compliance with the Convention on the Elimination of All Forms of Discrimination Against Women. In late March, this committee decided its first case about land and property rights, issuing a groundbreaking judgment in Estelle’s favor.

The committee held that by condoning discriminatory inheritance and property laws, the state denied the widows’ “equality in respect of inheritance and failed to provide … any other means of economic security or any form of adequate redress.” The committee found both a substantive and procedural violation since the court’s failure to hear the widows’ appeal violated their access to justice and right to an adequate remedy. In addition to compensation, the committee recommended the following:

  • repeal or amendment of discriminatory customary law provisions
  • dialogue between civil society, women’s organizations, and local authorities, including traditional leaders, on removing discriminatory customary law provisions
  • capacity building for judges, prosecutors, and lawyers on the Convention on the Elimination of All Forms of Discrimination Against Women
  • education to enhance women’s knowledge of their rights under the convention
  • prohibition against courts resorting to excessive formalism and undue delays
  • a coordinating mechanism to monitor the implementation of these recommendations

Justice is at last in sight for Estelle and Tanzanian widows like her. 

Governments too often ratify international human rights treaties for political appeal, never dreaming that they will be held to account for these obligations. It takes women like Estelle, with the persistence and courage to challenge injustice, to give teeth to these treaties. It is only through struggles like hers that rights can have any meaning.

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4 Comments

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Thanks for the great blog post! This is a very important decision by the CEDAW Committee and hopefully can help women in Tanzania and beyond to enjoy their human rights. I wanted to share the website for the CEDAW Committee where readers can learn more about the mechanism which advocates used in this case to seek a positive resolution to the violations experienced by Estelle. For more information, please see:

http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx

What an excellent decision from CEDAW! Let’s hope it proves to be a useful tool for women’s rights advocates in Tanzania to increase the pressure on the government for these sorely needed reforms.
Discrimination in inheritance and property regimes is having an incredibly destructive effect on women’s economic security in the context of the HIV&AIDS pandemic, especially for the legions of older women who have been widowed and left to care for orphaned children. UNICEF estimates that there are over 15 million children in sub-Saharan Africa who have been orphaned by the pandemic, and a simply overwhelming number of these children are being supported by grandmothers who are in perilous circumstances because of their inability to inherit, and rampant land and property grabbing.
Both legislative reforms and reforms to the administration of justice are urgently needed in this area, as the Committee has so rightly pointed out! The Stephen Lewis Foundation recently hosted a people’s tribunal on the need for better protection of African grandmothers’ human rights, at which grandmothers and leaders of community-based organizations from Kenya, South Africa, Swaziland, Uganda and Zimbabwe described injustices quite similar to those taking place in Tanzania: http://africangrandmotherstribunal.org/wp-content/uploads/2013/09/Grandm...
CEDAW’s decision mentions that the Committee has requested a reply from the Government of Tanzania – it would be very interesting to see what they say if they do respond – could OSF post their reply if becomes available?

This is a great piece about this very important case. We've interviewed many women who have suffered just these kinds of abuses, with grave consequences for their health and their children's well-being. You often hear calls for women's property rights. But when it comes to challenging discriminatory customary laws, governments sometimes claim they can do nothing. This case shows they can, and must, take steps to transform these laws so that women and men have equal rights. Thanks for the great summary, OSF!

Thanks for this information. I have just returned from an interview with a police inspector who is in charge of a police gender desk in one of the districts in Dar es Salaam. She has been promoting gender rights through training programs for women in order that the women can understand their rights. Her efforts have been recognized nationally and has been awarded a prize for two years in running. She also feels that what is needed is for women to value themselves and stand and fight for their rights. I have worked on gender equality issues for many years but have never used the term that women need to value themselves. I think that she is very right - that is where it has to start for women to have the courage to fight for their rights. Cases like these need to be given more publicity locally so that women know that they have value and can fight for their rights.

I am just curious - did she and the other woman get their matrimonial property back? .

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