Thursday, 7 June 2007

RECOMMENDED REFORMS for TANZANIA of Customary and Islamic laws of InheritanceThe Tanzanian government has established precedents for enacting statutes that supersede customary and Islamic law. For example, sections of the Penal Code, the Law of Marriage Act and the customary law displace provisions of Islamic law. In addition, provisions of the Law of Marriage Act and recent land legislation have preempted customary law. With this in mind, the arguments that customary and Islamic laws are sacred ground that the government may not tread upon cannot withstand scrutiny. B. The Tanzanian government has already enacted laws that supersede Islamic laws The Tanzanian government has already enacted legislation that preempts Islamic law as set forth in the Koran. For example, the Koran mandates that individuals found guilty of theft must be punished by having their hand amputated. But, pursuant to Section 265 of the Tanzanian Penal Code, theft is punishable by five years in prison, not by amputation of the hand. Just as Tanzania does not permit the Koran to dictate the punishment for Muslim thieves in Tanzania, it should not permit the Koran to govern the rules for distributing a Muslim person’s estate upon his or her death. There are also provisions of statutory law that supersede Islamic laws regulating the private sphere of family life. Specifically, the Law of Marriage Act of 1971 sometimes supersedes Islamic law on mainland Tanzania. For example, while the Act does recognize the validity of marriages performed under Islamic law, the Act circumscribes a Muslim man’s right under Islamic law to unilaterally dissolve his marriage. Pursuant to Section 107(3), a Muslim man must go to Court to get a divorce, something he does not have to do under the Islamic law, which permits him to sever the marriage by pronouncing triple talaq. Furthermore, before a Court will grant him a divorce, a Marriage Conciliation Board must certify that “it has failed to reconcile the parties.” The Marriage Conciliation Board certification requirement gives some measure of protection to a Muslim wife; the intervention of the Board might persuade her husband to change his mind regarding his desire to divorce her. This precedent provides additional impetus for the government to pass nondiscriminatory intestate succession laws that are applicable to Muslims.The Law of Marriage Act also grants women rights with respect to divorce that they do not have under classical Islamic law. For example, according to the Hanafi school interpretation of Islamic law, “dissolution of the marriage is the exclusive right of the husband with the court having the right to intervene only in the event of a serious genital defect of the husband.” Even more liberal Islamic scholars would permit women to apply for divorce only on specific grounds; these grounds may include: “injury or discord, a defect on the part of the husband, failure to pay maintenance, absence of the husband without an acceptable excuse, (and) the imprisonment of the husband.” The analogous provisions in the Law of Marriage Act are significantly more progressive. A Tanzanian Muslim woman may petition a court for divorce on the broad grounds that her marriage has “broken down”; her right to petition for divorce is not limited to those applicable under classical Islamic law. This provision protects Tanzanian Muslim women by giving them access to a legal remedy that they might not otherwise have if only Islamic law applied.As already demonstrated, customary law often supersedes Islamic intestate succession law. That Islamic law applies only when the presumption that customary law applies is rebutted demonstrates that it occupies a position subordinate to customary law. Under Tanzania’s new intestate succession law, the role of Islamic law should be even more limited. It should only apply when the deceased writes a valid will and should only govern the distribution of, at most, a third of the deceased’s estate. This would ensure that the widow is well-protected.C. The Tanzanian government has already enacted laws that supersede customary lawsThe Law of Marriage Act also contains provisions that are foreign to the customary law as codified in 1963. Generally, they make the Law of Marriage Act more equitable toward women. For example, pursuant to the codified customary law, a divorced woman leaves her failed marriage with a negligible amount of property; she is only entitled to her own personal property and an insignificant onetime payment from her husband. Section 114 of the Law of Marriage Act, on the other hand, regulates the way a court divides the spouses’ property upon divorce in a more just way. Section 114 creates the concept of marital property that is absent under customary law; upon divorce, the court divides property between husband and wife that had been acquired “during the marriage by joint efforts.” Furthermore, in addition to taking account of the “custom of the community to which the parties belong,” the court must consider other factors not relevant under traditional customary law. For example, the courts “shall (also) have regard to the extent of the contributions made by each party in money, property or work towards acquiring the (marital) assets.” The highest Court in Tanzania, the Court of Appeals, has interpreted Section 114 liberally, consistent with the spirit of the statute. In one case, it interpreted the “joint efforts” language to include domestic work performed by a wife. More recently, it upheld a High Court decision that equally distributed the marital property of the husband and wife upon their divorce. Thus, Tanzanian law protects women by ensuring that they receive a share of matrimonial property upon divorce even though they might not have financially contributed to its purchase.Women are also less vulnerable upon divorce under the Law of Marriage Act than under customary law with respect to court determinations regarding the amount of maintenance payments and child custody issues. In both cases, here again, “the customs of the communities to which the parties belong” is only one of the factors judges and magistrates must consider. The other factors the courts must regard inject considerations of equity and justice into its decision-making process. Given the progressive provisions in the Law of Marriage Act regarding the division of marital property, amount of maintenance payments, and award of child custody upon divorce, Tanzanian women are materially better off when their marriages are dissolved by divorce than when they are dissolved by the death of their husbands. This peculiar distinction seems to punish women who choose to remain with their husbands for life. The government should amend the intestate succession laws so that women’s share of marital property upon the death of their spouse is as large, or larger, than their share upon divorce. The Land Act and Village Land Act, passed in 1999, have further undermined the significance of customary law in Tanzanian society by supplanting some of its key provisions. For example, both statutes contain provisions ensuring a women’s right to “acquire, hold, use, and deal with land” is equal to that of men. Most importantly, Section 20(2) of the Village Land Act states:Any rule of customary law and any decision taken in respect of land held under customary tenure, whether in respect of land held individually or communally.... shall be void and inoperative and shall not be given effect to by any village council or village assembly of any person or body of persons exercising any authority over village land or in respect of any court or other body, to the extent to which it denies women, children or persons with disability lawful access to ownership, occupation or use of any such land. In essence, this section declares null and void provisions of customary law that discriminate against women with respect to occupancy of village land. Section 20(1) makes customary law applicable to resolving disputes that arise from an individual or group’s customary occupancy of village land, including disputes related to succession issues. Taken together, Sections 20(1) and 20(2) repeal provisions of customary law that restrict women’s, but not men’s, right to inherit and occupy village land. The Land Act contains other important provisions as well. Under the new law, there is a presumption that married women hold registered land as occupiers in common with their husbands, unless the certificate of occupancy indicates otherwise. More importantly, women who work and improve the land formally occupied by their husbands automatically acquire an interest in the land as an occupier in common. One of the benefits of these provisions is that it enhances a woman’s claim to the jointly held land upon her divorce. The intestate succession law of Tanzania should be amended so that the provisions of the Land Act would apply where the marriage was dissolved upon death of the husband as well. I. Responses to proposed legislation by government, magistrates, and reform focused NGOsDuring fact-finding, the authors of this report asked interviewees their opinions on various provisions of the new legislation the authors are proposing. This section enumerates and discusses the responses to the provisions.A. Support for a New and Uniform lawThe authors propose that Tanzania create a new, uniform inheritance law to govern all Tanzanians in matters of intestate succession; the new law would not make an exception for religion. Most interviewees agreed that a uniform inheritance law was necessary to reduce the confusion that the current tripartite system creates. Though they disagreed with other groups and amongst themselves as to the specific problems that were paramount, there was widespread agreement that the current system does not function well. One attorney aptly summarizes the prevailing view: “The Tanzanian system [of inheritance] is very, very cumbersome. The [system] is bad. The procedure is too cumbersome for a person to gain his or her rights. Not only cumbersome, but it’s also inadequate, [and furthermore], most if [it] is outdated.”The Law Reform Commission emphatically stated that they wanted “a statutory law that cuts across everyone in one uniform law.” However, while many people supported a uniform inheritance law, some expressed concern that the Muslim population would not support it. For example, one female politician voiced reservations about the degree to which Islamic law could be overridden. She noted that for many Islamic women, “following Islamic law means that she is a good wife,” and that in Parliament, the Muslim minority members “will shout at you and say you are interfering with religion” if you propose reform. Yet, the delegation discovered that there was support for a uniform law within the Muslim community. Muslim inheritance victims supported a uniform law and a Muslim tribal leader stated that he favored a gender-neutral statute such as the Indian Succession Act. One principle resident magistrate stated that the need for a religious exception was the “opinion of certain people – not the opinion of all Tanzanians or even all Muslims.” Thus, there appears to be support for a uniform, non-discriminatory inheritance law from both Tanzanians in general and the Muslim community.B. Gender EqualityIn order to end the continuing economic disparity between men and women, the delegation proposes that widows and widowers along with female and male children inherit equally. On the whole, most interviewees voiced unqualified, and often enthusiastic, support for the general principle of gender equality. However, upon detailed explanation of the authors’ proposals, equal inheritance rights between widows and widowers ultimately garnered stronger support than equal rights between sons and daughters . When questioned about his opinion on allowing sons and daughters to inherit equally, a High Court Judge voiced concern about giving female children the same inheritance share as their brothers because the son is “more likely to take care of his mother, while [the] daughter would be having children of her own.” When it was pointed out that giving more to the son would be discriminatory, the Judge readily conceded the point, saying “yes, it would violate the constitution. I know it is discrimination. [But] I don’t think it’s fair to have one hundred percent fairness when it comes to gender.” However, many people supported the notion of gender equality between female and male children. For example, one politician offered the exact opposite argument about the reliability of boys and girls when it comes to taking care of the mother:“It is quite fair [to have equal shares for boys and girls]. In the old days they thought boys would be better at handling the property. However, people now trust their girls more than their boys. Everybody is talking about this. The girls are closer to the family.” One government official involved in reform was adamant about the need for gender equality in the inheritance rights of children. The official argued that Tanzanian law “should not discriminate between boys and girls. We [the government body] want to improve this. Even in Islamic law, children should inherit equally, [even though] we do not want to violate anyone’s beliefs.” Another politician pointed out that though the ratios “were quite fair, [the] problem is that men will say these things are mine, and a woman should not get the fruits of my sweat. Men still feel that the property is theirs.” Tanzania must pass non-discriminatory inheritance laws in order to battle these such erroneous and discriminatory stereotypes.C. Removal of House and Chattels Before Division of the EstateThe authors of this report propose that the matrimonial home and household chattels be given immediately to the surviving spouse at the death of their husband or wife. Most interviewees agreed that widows should be entitled to certain property, and specifically the house and household chattels, before the division of the estate. One widow stated that, “If the house and household chattels are left to the wife and his pension is left to the wife, this will be very beneficial and the wife will be very happy and the children will also be happy.” Tanzania should endorse new legislation that sets aside the matrimonial home and household chattels for the surviving spouse.D. Shares For Spouses and ChildrenOnce the house and chattels are removed from the estate, the surviving spouse receive 45% of the estate, the children of the deceased share 45% equally between them, and the parents of the deceased share 10% equally between them. Giving a surviving widow 30% or more. One critique by an inheritance victim regarding the 45% ratio for widows and children was that “30% for the wife would be good, but the children need to get more than 45%.” However, she went on to express her feelings of frustration about the current system. “I want what I toiled for. I want my share. I am not entitled to receive everything, but I should get some of the employment benefits and some of the property.” Tanzania should protect surviving spouses and children from economic hardship by guaranteeing them a large portion of the estate, while still affording some economic support to the deceased’s parents in the later part of their lives.E. Criminalizing Property Grabbing and Widow InheritanceLast, there was unanimous support for a provision criminalizing property grabbing among those with whom the authors discussed the issue. One lawyer at the Ministry of Children, Women’s Affairs and Community Development stated, “We recommend that property grabbing should be criminalized. A civil remedy would be to have the person return the property or compensate the heirs.” Others, including one widow, had a stronger reaction: “The government should make a law or policy that anybody who forces others off their property should be considered to have committed a criminal offense. The penalty should not be for less than 5 years.” Thus, evidence indicates that Tanzania should implement a law criminalizing property grabbing, and that the penalty should be relatively severe.II. Memorandum for the BillThis Law aims to create a uniform intestate succession law that is applicable to all Tanzanians, regardless of their race, tribe, gender, religion, or customs. The drafters assumed that the purpose of an intestate succession regime is to ensure that the surviving spouse and children of the deceased are financially protected upon the decedent’s death. When a person dies, his or her spouse and children are financially more vulnerable because the surviving family members lose the earning potential of a member of their economic unit. This policy choice is consistent with the spirit of the Law of Marriage Act, which recognizes that both spouses make important contributions, financial or otherwise, to family life.The drafters of this legislation reject the contention that the purpose of an intestate succession regime is to carry out the intention of the deceased. The laws of Tanzania recognize the legal effectiveness of a valid will; a Tanzanian concerned about how his property will devolve upon his death can draft one. This is the only manner in which the intent of person with respect to the devolution of his property can be satisfactorily determined.This law is a significant improvement on Tanzania’s current tripartite system for 3 overarching reasons. First, the law applies to all Tanzanians, regardless of their religion or tribal customs. In the words of the Law Reform Commission, the current system “has the negative effect of reinforcing and perpetuating racial and tribal divisions amongst citizens” because individuals of different backgrounds are treated differently. The uniform law will eradicate the intra-family conflict that exists when family members of the deceased disagree about what system of law should govern the distribution of the deceased’s estate. It also simplifies an extremely complicated system. Second, the law is gender-neutral as daughters and widows are treated the same as similarly situated sons and widowers. As a result, it will be consistent with Tanzania’s obligations to ensure that women have equal rights with men under law and to eliminate all gender discrimination, obligations that are currently not being fulfilled. The law will increase women’s economic autonomy because it increases their access to capital. It also provides adequate protection for financially vulnerable widows, who under the old system had to depend on the goodwill of their adult children or in-laws for support. The law recognizes that Tanzanian widows are autonomous individuals able to provide for themselves; it is degrading to them to be forced to rely on others for their well-being. Third, the law reflects fundamental changes that having been taking place in Tanzania over the past two decades. Increasingly, the nuclear family is becoming the fundamental unit of Tanzanian society. The importance of the clan is diminishing as clan members move away in search of work, and marry people of other tribes and religions. That male clan members 1) have been selling clan land to non-clan members with greater frequency and 2) are not fulfilling their obligations to financially provide for a deceased male’s women and children are further evidence that the nuclear family is gaining in importance at the expense of the clan. Most disturbing are the accounts of clan members ejecting the deceased’s spouse and children from the matrimonial home and grabbing their property. Section 1: This section provides that this new uniform law of intestate succession will apply to all Tanzanians. The new law repeals any customary, statutory, or Islamic law that are inconsistent with it.Section 2: The decedent’s estate is defined to include all property in which the decedent has an ownership interest. Where the ownership interest is not full, the property is included in the estate only to the extent of the decedent’s interest. Section 3: Men and women are entitled to inherit from each other as spouses if they had a valid marriage as recognized by the Law of Marriage Act or if they meet the requirements of a five-factor test. The test was designed to give some measure of protection to individuals in relationships that are similar to marriages but who were never formally married. At the same time, the scope of the protection is limited so as not to undermine the safeguards for formally married women whose husband have extra-marital relationships. This section also protects surviving spouses by giving them absolute entitlement to the ownership of the matrimonial home and household chattels. This property automatically devolves to the surviving spouse upon his or her husband’s death; it never becomes part of the remainder of the property to be distributed by the administrator. In polygamous marriage situations, each surviving widow is entitled to the home in which she and her children, if any, are living. Last, the section ensures that a property interest a spouse may have in property of the deceased are acknowledged for purposes of intestate succession. Section 4: The drafters do not condone the practice of polygamy and would support future legislation aiming to eradicate it because it too violates women’s fundamental rights to equality under the Constitution and international law. However, this section acknowledges that, at the present time, polygamy is a social reality in Tanzania. By recognizing that the practice exists, the drafters hope to circumvent the problems African widows face when their country’s intestate succession laws do not explicitly account for it. Pursuant to this section, each surviving widow of a deceased man shall share in the portion of the remainder reserved for spouses. However, each spouse does not receive an equal share. The section sets out a ratio for determining the share of each wife. The widow married to the deceased for the longest duration will receive the largest share of the portion reserved for spouses; the widow married for the second longest period of time will receive the second largest. This ratio reflects the assumption that the woman married to the deceased for the longest period of time has contributed the most to his acquisition of property. There is an exception to this general rule for cases where this assumption is not correct.Section 5: A deceased man or woman may only transfer 1/3 of his property by will. This provision, the equivalent of a forced share, ensures that the purpose underlying the intestate succession regime is realized. Specifically, it guarantees that the spouse and children of the deceased are financially protected upon his or her death. Also included in this section is a small estates provision: where the total value of the remainder of the estate falls below a certain threshold, the entire remainder will devolve to the surviving spouse. This provision recognizes that, as a matter of policy, it is important that a beneficiary receives something substantial. Section 6: This section recognizes that the surviving spouse of the deceased should be the administrator of the estate. Today, in Tanzania, widows and their children suffer when administrators 1) squander property in the decedent’s estate or 2) act under the assumption that the administrator is the sole beneficiary. By giving priority to the surviving spouse, these problems will be avoided; parents, as opposed to other extended family members, are most likely to best provide for their children. Where more than one spouse survives the deceased, the wife married to the deceased for the longest duration is given priority. The assumption is that she has contributed most to the assets of the deceased and has the most to lose if property is squandered. Individuals challenging the court’s appointment of the administrator must show that the administrator is incompetent. The burden of proof placed on the challenger is high; he or she must prove incompetence by clear and convincing evidence. The section’s criminal provision prevents other individuals from interfering with a spouse’s attempt to become the administrator. Section 7: The criminal penalties and civil cause of action created by this section act as a deterrent to administrator’s mismanaging the assets of the deceased. Section 8: Individuals within each class of heirs receive property from the estate independent of their background, religion, or sex. Pursuant to this statute, unlike under the Islamic and customary law systems sons and daughters, mothers and fathers, and sisters and brothers of the deceased inherit equally. This provision is consistent with Tanzania’s obligations under international law and the Constitution; Tanzania must ensure the equal protection of all citizens without regard to sex.The section provides that property distributed to beneficiaries gives beneficiaries a full ownership interest in such property. This interest does not terminate if the beneficiary remarries. The one exception to this general rule is that there is a restriction with respect to the alienability of clan land. Both men and women must give the clan the right of first refusal on sales of clan land. This provision reinforces Tanzania’s clan structure in a manner that is consistent with international human rights treaties and Tanzania’s Constitution.The final subpart of the section delineates the shares that each class of beneficiaries of the decedent’s estate receives. In the typical case, where a man is survived by his spouse and children, but not parents, the spouse(s) and children receive 50% each. Note the shares distributed are with respect to the remainder; the surviving spouse(s) automatically receive the matrimonial home and chattels upon the decedent’s death pursuant to Section 3. The drafters felt that providing a large share to each of these classes was the best way to financially protect them. Where a decedent is survived by his or her parent(s), the parents are also beneficiaries, in this case, the spouse(s) and children 45% each, and the parents 10%. Elderly parents are an economically vulnerable group who deserve protection. According to the statute, it is rare that extended family members of the deceased will inherit his or her property. This reflects the idea that the nuclear family is now the fundamental unit of society. Section 9: The drafters included this section to protect young children. An administrator, most likely the parent or sibling of the minor child, will hold her child’s share of the estate in trust. Where the parent of a minor child is not the administrator of the estate, the administrator will distribute the child’s portion of the estate to the child’s parent to be held in trust for the benefit of the child. Moreover, each parent will be the guardian of his or her own children. Underlying these provisions is the assumption that a parent is the person most likely to act in the best interests of his or her child. Section 10: This section creates criminal penalties and civil causes of action that will deter individuals from 1) grabbing the deceased property before it is distributed by the administrator, 2) ejecting the surviving spouse from the matrimonial home, and 3) kidnapping children of the deceased. Section 11: The practice of widow inheritance is criminalized pursuant to this section. Recognizing that widows who are inherited lack independence and autonomy, the section places the burden of proof on the accused. Once the widow files a cause of action, the accused must show proof that they did not coerce her to remarry. Criminal penalties will deter individuals from coercing widows to remarry. Section 12: With respect to the new law, the government is obligated to 1) train government officials and police officers about the new provisions, 2) undertake a media campaign to spread awareness, and 3) coordinate their efforts with NGOs and community organizations. III. The BillTHE UNIFORM INTESTATE SUCCESSION ACTI. IntroductionA. The devolution of the estate of any deceased person shall be governed by one uniform law of inheritance, regardless of such person’s age, race, color, sex, religion, political or other opinion, national or social origin, place of origin, property, birth, tribe, custom, tradition, disability, health status, station in life, or other status. B. To the extent that any existing customary, Islamic, or statutory laws are inconsistent with provisions of this act, they are hereby repealed. These include, but are not limited to, those set forth in Schedule I to this Act. II. Definition of EstateA. The estate of a deceased person shall include any and all property of the deceased in which the deceased had an ownership interest, to the extent of that interest, including but not limited to, personal chattels, livestock, agricultural land, non agricultural land, clan land, family land, vehicles, agricultural equipment, business entities, bank accounts, employment benefits, and monetary investments. III. Minimum Spousal ShareA. Any surviving spouse shall only be entitled to inherit if she or he and the decedent had a valid marriage as recognized pursuant to the Law of Marriage Act or the marriage meets the requirements of the following 5 factor test: i. The relationship in question has lasted longer than 2 years; andii. Neighbors recognize the couple as husband and wife; andiii. The couple went out in public together as husband and wife; andiv. The couple lived exclusively together under the same roof for the duration of at least 2 years immediately prior to the spouse’s death; and v. The decedent is not survived by a spouse or spouses with whom he or she had a valid marriage as recognized pursuant to the Law of Marriage Act B. Where the intestate is survived either by one spouse or by more than one spouse, each spouse shall be entitled absolutely to the marital home and curtilage occupied by her and to the household chattels and vehicles of that home to the exclusion of other spouses, children and family. This right is effective immediately upon the death of the decedent.C. Any surviving spouse is absolutely entitled to his or her share of all other personal or real property of the deceased in which she or he holds an ownership interest because the property was jointly owned by both, as provided for in the Law of Marriage Act, the Land Act, the Village Land Act, or any other source of law.D. All other property is that not specified in III (B) and (C) is deemed the remainder of the estate. E. In the absence of a surviving spouse, the matrimonial home, household chattels and vehicles with respect to the decedent become part of the “remainder” of the estate as defined in part (D) of this section.IV. Provisions for Multiple SpousesA. Where there is more than one surviving spouse, each surviving spouse shall receive a portion of the spousal share set forth in section VII(F)(i-iii) and (v) multiplied by the following ratio: number of years married divided by the total number of years married for all surviving spouses. For example, if three wives survive the deceased, distribution will occur as follows:Wife A was married to the deceased for 10 yearsWife B was married to the deceased for 6 yearsWife C was married to the deceased for 2 yearsTotal Number of Years Married for All Spouses is 18 years.Wife A’s portion is 10/18 or 5/9 of the share set forth in section VII(F)(i-iii) and (v).Wife B’s portion is 6/18 or 3/9 of the share set forth in section VII(F)(i-iii) and (v).Wife C’s portion is 2/18 or 1/9 of the share set forth in section VII(F)(i-iii) and (v).B. IV(A) shall operate unless this division would result in an injustice towards a spouse who has contributed disproportionately to the proportion allocated by the formula above. The burden of proof that an injustice results is on the spouse challenging the application of the formula to the estate.V. Disposition by WillA. A maximum of 1/3 of the remainder may be disposed of by will.B. Where a will is written to dispose of more than 1/3 of the remainder, the entire will is null and void. Under these circumstances the estate will be distributed under the provisions of this Act.C. Where the value of the remainder is less than __________, the decedent may not dispose of any portion of the remainder by will. The remainder will instead devolve in its entirety to the surviving spouse. In the absence of a surviving spouse, the remainder shall devolve in accordance with the provisions of section VIII.D. Any part of the decedent’s estate not effectively disposed of by will shall be distributed to the decedent’s heirs as prescribed in sections this Act.VI. Choice of AdministratorA. No estate may be distributed without letters of administration. Any distribution executed without letters of administration or otherwise contrary to the provisions of this law shall be null and void.B. Where the deceased has died intestate, letters of administration shall be granted in accordance with the guidelines set forth in Part V(D) of the Probate and Administration Ordinance as amended by this section.i. The spouse with the longest marriage is the administrator unless he or she is found incompetent according to Part VI(B)(ii) of the Probate and Administration Ordinance. If he or she is found incompetent, then the status of administrator will devolve according to the seniority of spouses as determined by the length of the marriage to the deceased. In the event that the deceased is not survived by a spouse, the eldest living child regardless of gender will be the administrator unless he or she is found incompetent according to Part VI(B)(ii) of the Probate and Administration Ordinance. If he or she is found incompetent, then the status of administrator will devolve according to the age of the children, with the next eldest child chosen regardless of gender. If the deceased is not survived by any of the above, then the administrator will be selected from the remaining beneficiaries as set forth in Section V(D)(33)(4) of the Probate and Administration Ordinance.ii. A party contesting the court’s grant of letters of administration must show by clear and convincing evidence that the recipient of the letters of administration is incompetent to administer the deceased estate. In the event that the contesting party meets the burden of proof, the court will grant the letters of administration to the applicant with next highest priority. iii. The court shall not consider a person’s gender in selecting the administrator of the estate. iv. Any person interfering with a surviving spouse’s plans to obtain a letter of administration or administer the deceased’s estate is guilty of a crime, and is punishable by a fine of ______ and to a prison term not exceeding one year. v. Interfering with a surviving spouse’s plans to obtain a letter of administration or administer the estate includes, but is not limited to, conduct such as harassment, intimidation, assault, kidnapping, vandalism, theft, and robbery that is directed against the surviving spouse, her children, and her property. C. Any local body, including clans, tribal organizations, and other informal networks, assisting in a decision as to who shall apply for letters of administration shall act in conformity with the guidelines set forth in this section and in Part V(D) of the Probate and Administration Act. Any person so chosen by that body to be administrator of an estate must apply for a letter of administration.VII. Duties of AdministratorA. An administrator who knowingly or intentionally: i. Does not distribute the estate in accordance with the provisions of this law or ii. Does not file a final accounting detailing how the decedent’s estate was administered within the time required by the lawCommits an illegal act and is punishable by a minimum fine of _____ and not exceeding ________. B. Any beneficiary may file civil causes of action against the administrator and wrongful distributee(s) for the return of the property to which the beneficiary is entitled under this Act, for its value if it has been destroyed, and for damages resulting from the administrator’s intentional, knowing, reckless, or negligent failure to distribute the deceased’s estate in accordance with the provisions of this law. VIII. Manner of DistributionA. Within each class of heirs as set forth in part (E) of this section, each person shall receive an equal share without regard gender, age, religion, tribe, custom, tradition, disability, race, color, political or other opinion, national or social origin, place of origin, property, birth, health status, station in life, or other status. B. Each beneficiary shall receive a full ownership interest in any property he or she inherits, including but not limited to self-acquired land and family land, except clan land. A full ownership interest is any interest that may be sold, transferred, alienated, mortgaged and otherwise encumbered.C. Each beneficiary’s interest in clan land is a full ownership interest except with respect to the right to sell such land. Before soliciting offers of purchase from the public at large, beneficiaries have the duty to solicit an offer from the clan. Beneficiaries may reject this offer if it falls below the fair market value of the land as determined by a government assessor. D. Women have the same right to sell clan land as do men.E. Any surviving spouse maintains a full ownership right in any property she or he receives from a decedent’s estate upon remarriage.F. The remainder shall devolve in the following manner:i. Where the deceased is survived by a spouse, children and parent(s), the share of the spouse shall be 45%, that of the children shall be 45%, and that of the parent(s) shall be 10%.ii. Where the deceased is survived by a spouse and children, but not by parent(s), the share of the spouse shall be 50% and that of the children shall be 50%.iii. Where the deceased is survived by a spouse and parent(s), but not by children, the share of the spouse shall be 90% and that of the parent(s) shall be 10%.iv. Where the deceased is survived by children and parent(s), but not by a spouse, the share of the children shall be 90%, and that of the parent(s) shall be 10%.v. Where the deceased is survived by a spouse, but not by children or parent(s), the spouse shall receive 75%, and 25% shall devolve upon any surviving grandchildren of the deceased. Where the deceased is not survived by grandchildren, the surviving spouse shall inherit the entire Where the deceased is survived by children, but not by a spouse or parent(s), the children shall inherit the entire estate.vii. Where the deceased is survived by parent(s), but not by a spouse or children, the share of the parent(s) shall be 50%, and 50% shall devolve upon any surviving grandchildren of the deceased. Where the deceased is not survived by grandchildren, the surviving parent(s) shall inherit the entire estate.viii. Where the deceased is survived by grandchildren, but not by a spouse, children, or parent(s), then the grandchildren shall inherit the entire estate.ix. Where the deceased is survived by neither spouse, children, parent(s), nor grandchildren, 100% of the estate shall devolve in turn upon each of the following class of heirs. Each class shall inherit to the exclusion of others.1. Sisters and brothers.2. Aunts and uncles.3. Nieces and nephews.4. First cousins.x. If the deceased is not survived by any of the heirs listed above, the estate shall devolve to the state. G. Where, under Section VIII(F), children are entitled to inherit, but some of the children are alive and others have died leaving children of their own, the share of the dead child shall devolve upon his or her children. IX. Protection of Minor ChildrenA. Where a beneficiary is a minor child, the administrator of the estate shall hold such beneficiary’s share in trust until the minor child gains legal capacity B. An exception to IX(A) occurs when a parent of a minor child survives and is not the administrator of the estate. In this case, each surviving spouse shall be guardian of his or her own minor children and shall hold his or her minor children’s share of the estate in trust. X. Property GrabbingA. No person shall, before the distribution of the deceased’s estate, whether testate or intestate, eject a surviving spouse or child from the matrimonial home.B. Any person who, before the distribution of the deceased’s estate, whether testate or intestate –i. Unlawfully ejects a surviving spouse or child from the matrimonial home contrary to part (A) of this section; orii. Unlawfully deprives an entitled person of the use of –1. Any part of the property of the entitled person ; or2. Any portion of the remainder which the entitled person stands to inherit under this law; oriii. Removes, destroys or otherwise unlawfully interferes with the property of the deceased person; oriv. Removes any children from the care and control of the surviving parent;Commits an illegal act and is punishable by a minimum fine of __________ and not exceeding ________ and/or to a term of imprisonment not exceeding one year. C. Any person ejected from his or her matrimonial home or who has his or her property removed, destroyed, or otherwise unlawfully interfered with may file a civil cause of action against the perpetrators of said conduct for the return of the property, its value if it has been destroyed, and for damages. XI. Treatment of WidowsA. Widows are not property and cannot be inherited or otherwise coerced to remarry. Such coercion contravenes section 16 of the Law of Marriage Act.B. A person is guilty of coercing a widow to remarry if such marriage was brought about without the free and full consent of the widow.C. A widow who brings a cause of action under this provision creates the rebuttable presumption that her marriage was coerced. D. Persons guilty of coercing a widow to remarry are punishable by up to 5 years in prison and _______ in fines. E. Coerced marriages are subject to annulment.XII. Public EducationA. The government shall ensure the implementation of this law by educating the public as to the rights it guarantees. The government must take measures that include, but are not limited to, the following:i. Train the police force to understand the information regarding the new criminal provisions of this Act and to perform its duties under this Act. ii. Distribute a copy of this law to all courts in Tanzania in both Swahili and English.iii. Use the media, posters, pamphlets and other means to publicize the provisions of this law in both Swahili and English.iv. Ensure that its officers at every level understand this law and further require them to educate their communities about the provisions of this law.v. Co-ordinate its public education efforts with NGO’s and community organizations to raise women’s awareness of their rights under this law.Schedule 1The following provisions of law are hereby repealed:1. Judicature and Application of Laws Ordinance § 9(1)2. The Indian Succession Act3. Administration (Small Estates) §§ 194. Probate and Administration Act § 2(1), 88(1)(c)5. Local Government Ordinance Rules 5, 7, 19, 20, 22, 23, 25-31, 44-516. Declaration of Local Customary Rules 27, 66, 69, 75-77, 93. Appendix A:A. Widow and One Son: the widow receives a fixed share of 1/8; in the absence of other sharers, the son, as a residuary heir, receives the remainder of the estateWidow: 1/8 Son: 7/8B. Widower and One Son: the widower receives a fixed share of 1/4; in the absence of other sharers, the son, as a residuary heir, receives the remainder of the estateWidower: 1/4 Son: 3/4C. Two Widows , Each with One Son: the wives/widows receive a fixed share of 1/8 to be divided equally amongst them; in the absence of other sharers, the sons, as a residuary heirs, are entitled to equally share the rest of the estateWidow 1: 1/16 Widow 2: 1/16 Son 1: 7/16 Son 2: 7/16D. One Husband/Widower with One Son from Each of his Two Deceased Wives: the husband/widower receives a fixed share of ¼ from each wife; in the absence of other sharers, the sons, as residuary heirs, receive the remainder of their own mother’s estateWidower: 1/2 Son 1: 3/4 Son 2: 3/4E. One Son: in the absence of sharers such as a widow or widower and other siblings, a son, as a residuary heir, receives all of his parent’s estateSon: Total Estate Other Relatives: NothingF. Two Sons: in the absence of sharers such as a widow or widower and other siblings, the sons, as residuary heirs, equally divide all of their parent’s estateSon1: 1/2 Son 2: 1/2 Other Relatives: 0G. One Daughter: regardless of the existence of a surviving parent but in the absence of other siblings, the daughter, as a sharer, receives ½ of her parent’s estateDaughter: 1/2 Other Relatives: 1/2H. Two Daughters: regardless of the existence of a surviving parent but in the absence of other siblings, the daughters, as sharers, equally divide a fixed share of 2/3 of their parent’s estateDaughter 1: 1/3 Daughter 2: 1/3 Other Relatives: 1/3I. One Son and Two Daughters: in the absence of sharers such as a widow or widower and other siblings, each daughter, now as a residuary heir, receives half of what their brother receives of their parent’s estate, namely 1/4 for each daughter as compared to 1/2 for the sonDaughter 1: 1/4 Daughter 2: 1/4 Son: 1/2 J. Two Sons and One Daughter: in the absence of sharers such as a widow or widower and other siblings, the daughter, now as a residuary heir, receives half of what her brothers receive of their parent’s estate, namely 1/5 for the daughter as compared to 2/5 for each sonSon 1: 2/5 Son 2: 2/5 Daughter: 1/5


Anonymous said...

Well I am trying to figure out intent of the woman receiving wealth after husbands death or through divorce.
For starters a marriage is supposed to unite the two. This Idea of comparing what a woman receives in either scenario is not that important. We compare women in Europe or the Americas who pick up bad habits like prostitution promiscuity or Same gender relations. Allowing a woman to have too much wealth is like punishing her. Few men will want to marry her afterwards. Let communities figure out what is important to its members. This notion of equality is off the mark.

eddkenya. :-) said...

consider this scenario. An A woman is married 3 times and gets assets from each marriage. Don't you think that this will cause the rise of serial divorcees who move from marriage to marriage with the sole purpose of enriching their matrimonial families? With such choices some men will resort committing dangerous acts to prevent his family legacy from moving in to the wife's hands. Murder, Arson, disposal of property...and we will have an unstable society. Let us not be to quick to rubbish our customary laws.

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