Tanzania
Ephrahim v. Pastory, (1990)
High Court of Tanzania
Keywords: Discrimination-Gender/Sex
Brief Summary: The petitioner challenged a Tanzanian law, pursuant to the Haya custom, that forbade her from selling customary land that her father had bequeathed her through a will.
CEDAW: The High Court cited the Constitution and international treaties such as CEDAW to outlaw this custom, holding that it was discriminatory as it violated women's property rights. The court declared: "the principles enunciated in the above named documents [including CEDAW] are a standard below which any civilzed nation will be ashamed to fall."
Case brief from CEDAW At Work in "CEDAW: Treaty For The Rights of Women"
Chilla v. Chilla, (January 6, 2004)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Ivona Chilla, sister of the deceased, filed suit objecting to the appointment of Demetria Chilla, the decedent's wife, as administrator of the decedent's estate. She further argued that she should have custody over the decedent's son because his mother was a widow and would be dependent on relatives. The Judge rejected the appellant's custody claim, holding that under the welfare of the child embodied in Article 3 of the Convention of the Rights of the Child (CRC), the respondent was the best person to have custody of the boy as she was his mother and had cared for him since his birth.
CEDAW:The Judge further held that the appellant's argument that the respondent wife had no right to serve as administrator because she was not chosen to do so by her husband's clan was contrary to the equality provisions of Articles 13, 19, and 26 of the Tanzanian Constitution and Articles 2 and 16 of CEDAW. In addition, the judge noted that the trial magistrate's gratuitous finding that only male children can inherit was both irrelevant and contrary to the Tanzanian Constitution, which bars gender discrimination in all aspects. She dismissed the appeal with costs.
Case brief from International Association of Women Judges
Mtefu v. Mtefu, (January 20, 2003)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary:Appellant husband argued that the trial court erred in granting the parties a divorce on grounds of his adultery and cruelty and in ordering the equal division of the marital property. The Judge rejected the appellant's argument that the respondent had consented to the adulterous affair and found that the appellant was cruel in his adultery and in having his wife arrested when she protested the affair. The Judge also rejected the appellant's claim that the respondent's housework was a purely conjugal obligation that did not contribute to the marital property, explaining that such arguments are a "clear reflection of the violence and discrimination which a woman has lived with in the society for years" and that domestic services require recognition and compensation.
CEDAW:The Judge stated that awarding all of the marital property to the appellant husband would be contrary to the equal protection provision of Article 13(1) of the Tanzanian Constitution and held that the trial court's equal division of marital property was proper and consistent with the principles of nondiscrimination and human dignity found in Article 9(f) and 13(1) of the Constitution of Tanzania, Article 15 of CEDAW, and the UDHR.
Case brief from International Association of Women Judges
Ndossi v. Ndossi, (February 13, 2003)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary:The appellant was appointed the administrator of the estate of his deceased brother by the primary trial court. The widow of the deceased successfully challenged that appointment in the appellate district court. The brother of the deceased appealed, seeking restoration of the primary court decision.
CEDAW:The Judge held that the widow was entitled to administer the estate on behalf of her children under the Constitution of Tanzania, which provides that "every person is entitled to own property and has a right to the protection of that property held in accordance of the law." She further held that the Article 9(a) and (f) of the Constitution recognizes human rights by requiring "that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights." This clause generally domesticated human rights instruments ratified by Tanzania, including the anti-discrimination principles of CEDAW, Article 2(b) & (f), and the best interest of the child principle found in Article 3 of the CRC. She found that these provisions protect widows and children from "uncouth relatives prying and/or attempting to alienate the estate of deceased fathers and mothers under the shield of custom."
Case brief from International Association of Women Judges
Njobeka v. Mkorogoro, (July 13, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Respondent husband issued a talak to appellant wife, divorcing her under Islamic law. BAKWATA, the National Muslim Council of Tanzania, confirmed the talak and advised the parties that respondent husband should pay his wife Tsh 500,000 as a parting gift. When the respondent failed to pay, the appellant filed civil matrimonial proceedings in the primary court. The primary court issued a decree of divorce and ordered the respondent to pay Tsh 500,000, on the ground that this had been the agreement between the parties. On appeal, the appellant argued that the primary court's award was inadequate because it failed to take into account both parties' contributions to the marital property.
CEDAW: The Judge held that the primary court erred in adopting the relief recommended by BAKWATA. She noted that BAKWATA is a reconciliation council; once reconciliation fails, its authority ends. The primary court erred by failing to provide the appellant an effective remedy in accordance with the principle of equal protection of the law guaranteed by Article 13(1) of the Tanzanian Constitution. Moreover, the primary court's decision was contrary to Article 2(a) of CEDAW, which requires state parties to embody the principle of equality before the law in their national Constitutions and ensure the practical realization of that principle. The Tanzania Constitution expressly recognizes the UDHR, which is a source of all other international treaties dealing with human rights. The Judge ordered that the appellant be awarded one of the two houses the couple had jointly acquired as her share of the matrimonial assets.
Case brief from International Association of Women Judges
Jonathan v. Republic, (September 21, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Appellant Jonathan, with 3 companions armed with sticks and machetes, forcibly seized a 23-year-old woman from her home, took her to his house, and raped her. The appellant claimed that his conduct had been permissible as a traditional marriage under customary norms.
CEDAW: The Judge found that the sexual encounter was violent and nonconsensual and held that without volition, there could be no marriage between the parties under Tanzania's Law of Marriage Act, which provides that "[m]arriage means the voluntary union of a man and a woman." The Judge held that the complainant was further protected by Article 4 of the DEVAW, which calls upon States to reject custom, tradition, or religion as excuses to avoid their obligation to protect and offer adequate relief to women victims of violence; Article 14 of the UDHR, which requires volition and consent for a valid marriage; Article 16(b) of CEDAW, which guarantees the right to equality in entering into marriage and freely choosing one's spouse with free and full consent; and Article 23 of the ICCPR, which guarantees the same. The court thus held that the appellant was correctly convicted of rape for the complainant "never consented to the appellant carnally knowing her nor marrying her under the obnoxious customary practice of grabbing women, locking them up, and sexually assaulting them in the name of Chagga customary marriage."
Case brief from International Association of Women Judges
Mohamed v. Makamo, (June 8, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Appellant Guliya Mohamed appealed the decision of the district court awarding the appellant wife 5 percent of the marital property and the husband 95 percent upon their divorce. The Judge found that the respondent had introduced no evidence of his own contribution to the property. She found that "With greatest respect to the trial magistrate the decision is discriminatory and a reflection of stereotyped concepts of the roles of man and woman. The appellant was given 5 percent division because she is a woman and women are taken to be inferior in all respects to men."
CEDAW: The Judge held that this decision was contrary to Section 114 of the Law of Marriage Act and Article 13(1) of the Constitution of Tanzania, which guarantees equal protection of the law and which is a reflection of Article 7 of the UDHR and Article 15 of CEDAW. Consequently, the Judge ruled that appellant wife should be awarded 50 percent of the assets.
Case brief from International Association of Women Judges