Proposal to write a feminist judgment and commentary.
This case would benefit from a feminist judgment because, as a constitutional test case, it stands out against the recent trend in African constitutional case law in favour of women’s equal inheritance rights. It also raises unresolved issues about the changing nature of living and codified customary law in Tanzania. The case was unusual because it signalled a conservative retreat by the Tanzanian High Court, against a backdrop of more progressive Tanzanian case law on inheritance, including Ephrahim v. Pastory. The court’s judgment is significant because it raised the issue of social change and progressive steps towards gender equality, but then chose to resolve the legal tension in favour of the patriarchal status quo, declining to strike out gender discriminatory customary inheritance laws. The case is also notable for having eventually made its way to the CEDAW Committee, which issued its recommendation in the case of ES and SC v. United Republic of Tanzania in April 2015. The Committee criticised the State party for failing to revise or adopt legislation to eliminate discriminatory aspects of its codified customary laws and for failing to discharge its obligations under CEDAW. It reveals much about the political strength of patriarchal social power relations, that the Tanzanian government has been slow to adopt the CEDAW Committee’s recommendations.
The litigation was initiated by a group of activist lawyers on behalf of two widows of customary marriages, who had each been denied by their husbands’ relatives the right to administer or inherit their husbands’ estates, including their homes according to Sukuma customary law. The reasoning of the High Court on the nature of customary law was interesting - and contradictory. On the one hand, it recognised that customary laws are living and evolving. On the other, it saw the task of changing outdated codified customary laws as a matter for local government under its statutory powers. However, in practice none of the district councils of Tanzania have used their statutory powers to conduct periodic studies of customary laws or bring them up to date since their enactment in the 1960s. I have argued that the current statutory mechanism and judicial approach in this case effectively served to reinforce the discriminatory status quo, because the court did nothing to address the gendered power relations that create resistance to amending local laws to promote gender equality (Dancer 2017, 119-120). The nature of customary law, the role of the courts and the power relations that underpin resistance to legal and social change in this area, are important issues that can be explored in detail through a feminist rewriting of the judgment and accompanying commentary.