Among the many debates surrounding land in Africa, one that has endured through both colonization and independence is the argument over the merits of preserving customary land law. Human rights–based approaches to property rights in sub-Saharan Africa note women’s secondary or derivative rights to land under customary law, correctly identifying inequalities in rules and practice. Communitarian approaches, by contrast, address the adaptability and accessibility of land regimes defined by customary law. This book contributes to the debates on women, land, and law, and while it will be frustrating to some because it does not take a side in the debate, it helpfully adds to what we know about the praxis of customary law and the impact of efforts to embed customary law within a more egalitarian legal system.
Helen Dancer is a lawyer by training as well as a legal anthropologist. This background serves her well in understanding the breadth of laws affecting land rights and the legal challenges that individuals face. The text is based on fieldwork in Tanzania in and around Arusha, interviews, and observations in courts and legal aid clinics. Like a number of African countries, Tanzania is attempting to promote egalitarian land legislation while at the same time recognizing explicitly patrilineal customary law and land tenure.
The first part of the book addresses the historical and social context of women’s claims to land. This is followed by an overview of land law and the court structure in Tanzania. The second part of the book examines praxis—what actually happens when women try to make land claims—focusing on procedural justice, the fora open to women with land claims, and legal interpretation. This latter part of the book analyzes specific cases and includes a number of court transcripts and an appendix with further details about a few of them. Disputes are traced from their origins to final judgment in Tanzania’s specialized land court system.
This book makes three new contributions to the literature on women’s access to land under customary law in Africa. First, it identifies and illustrates the overlap between marital status and land access for women under customary law and highlights the fact that the Tanzanian land adjudication structure is unable effectively to address the issues that constrain women’s access to land. Since most women are unable to purchase land in their own names and derive land rights from their marital status, customary and statute land laws cannot guarantee women’s rights to property in the absence of marriage and succession laws that are fair and relevant to local practices. Herein lies a legal lacuna, as the prevalence of polygamy and informal marriage in Tanzania, and indeed other parts of the African continent, create uncertainty in women’s property rights. In situations in which “relationships cannot be proved by a marriage certificate,” Dancer writes, “. . . litigants must rely on other kinds of evidence to prove the nature of their relationship and financial contributions. This may be extremely difficult where a relationship has been conducted in secret or where financial contributions to the property have been made in cash” (125). When marital relationships are not formalized or legitimized, property access by women and their children can suffer.
The second, related contribution of Dancer’s work is the observation, illustrated through cases, that for a woman power dynamics within her family are pivotal to her access to justice. For example, a married women with no children has weaker “security of tenure over her home and/or land” (45) than a married woman with three or four older sons. Dancer notes further that a woman’s ability to access justice is also dependent upon her ability to invoke the supporting testimony of powerful allies within her extended family.
The final important contribution of Dancer’s book is her observation that even the most egalitarian land laws will not necessarily result in the fair resolution of disputes. Although the cases she cites represent a small, nonrandom sample, she notes a critical difference in the nature of plaintiffs’ claims. Claims to land by men against women often represent challenges to women’s existing ownership or claims to land, whereas cases brought by women tend to be defensive responses to encroachment on the part of a male relative. “I found it was uncommon,” she says, “for women to bring claims against men in land courts for land they had never used or occupied” (46).
This is an excellent book that details the micro-level exclusions and difficulties women face in asserting land rights as well as the challenges states face in attempting to accommodate customary land law within egalitarian legal systems. It will be especially interesting to those interested in women’s property rights and access to justice under customary law.
