The UN’s Rebuke of Inheritance Laws Is a Victory for Women’s Health
By Tamar Ezer
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.
Until June 2016, Tamar Ezer was deputy director of the Law and Health Initiative of the Open Society Public Health Program.