Land as a Human Right: A History of Land Law and Practice in Tanzania

Chapter Six - Women and the Right to Land in Tanzania

Chapter Six Women and the Right to Land in Tanzania Then God blessed them and God said to them “Be fruitful and multiply; fill the earth and subdue it, have dominion over the fishes of the sea, over the birds of the air and over every living thing that moves on earth”. (Emphasis added). - Genesis 1: 28 - 254 LAND AS A HUMAN RIGHT The International Law Jurisprudence on Women’s Right to Land The question of women’s right to property, including in this sense landed property, is very old and of an international character. Whoever undertakes to discuss it successfully, therefore, is advised to have, in the first place, a reflection over the above quote from the Scripture. The idea behind this need is to enable him to appreciate how John Locke, the first political thinker in feminist jurisprudence, relies on the quote to reach a conclusion that, in the beginning God granted a “joint title” to both man (Adam) and woman (Eve). Locke begins his interpretation of the above provision by asking what seems to be a rhetorical question. If it be said that Eve was subjected to Adam, it seems that she was not to him as to hinder her dominion over creatures, or property in them, for shall we say that God ever made a joint grant to two, and one only was to have the benefit of it?962 To Locke, any interpretation that disqualifies women from property rights is untenable for it contradicts the Scripture, which to him, “speaks not nonsense”963 . That being so, the question from the Human Rights camp is therefore: what then took away the original right of the woman to “fill the earth and subdue it”? To Locke, the truth is in the prejudices of our ill-grounded opinions that authorise man to understand the Scripture contrary to the direct and plain meaning of the words.964 Going by this line of reasoning, then, a conclusion must be that denying women their right to landed property is a direct consequence of man turning away from the word of God. It is not only the biblical doctrines that address land as a common property, but even the Sharia is inclined towards that reality. We learn through Yakubu M.G that: In sharia, land is considered as indispensable to individual and social life just like water, air, light, and fire and no person will have an exclusive power of control over it expect for the part he uses… Land is a gift from Allah (God) and everybody has usufructory right to it.965 Whatever reason may be advanced to explain the misfortune created by the deliberate denial of the right to land of women, the reality is that the right of women to access land and enjoy the fruits thereof has turned 962 See Locke, op cit, Book I p. 31 at paragraph 29. 963 Ibid, p. 23, at paragraph 31. 964 Ibid, p. 26, at paragraph 37. 965 See YAKUBU, M.G., (1985): Nigerian Land Law, London: Macmillan, at p. 8. CHAPTER SIX 255 out to be a human rights agenda both in the national and international arenas. In the end, the conclusion seem to favour the truth that male bias has, for quite long, tended to crack the very foundation of the rights of women, including property rights. Many efforts have been in place to address the problem and the fight continues to date. According to the available records, Olympe De Gouge is probably the firstwomeninthefeministcamptospeakovertlyfortherightsofwomen. She, having been dissatisfied by the revolutionary French Declaration of the Rights of Man and Citizen of 1790 which did not recognise women, wrote what she called the Declaration of the Rights of Woman of 1791. Articles II and XVII of this declaration are relevant for the purpose of this discussion and, therefore deserve full quotation as hereunder: Article II The purpose of any political association is the conservation of the natural and imprescriptible rights of woman and man; these rights are liberty, property, security, and especially resistance to oppression. Article XVII Property belongs to both sexes whether united or separate; for each it is an inviolable and sacred right, no one can be deprived of it, since it is the true patrimony of nature, unless the legally determined public needobviouslydictatesit,andthenonlywithajustandpriorindemnity. In this Declaration, Olympe was calling for the State to respect not only the right of women to land...