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Case Law in Tanzania - High Court This is a landmark decision regarding property ownership. Holaria Pastory brought a court challenge to the Haya customary law that prevented her from selling clan land. She had inherited land from her father, through his will, but when she tried to sell it her nephew applied to have the sale voided. Tanzania’s Declaration of Customary Law clearly prohibited her sale of the land in s. 20 of its rules of inheritance. Pastory argued that this constraint on women’s property rights violated the Constitution. The court was faced with the difficulty of interpreting a constitutional guarantee of freedom from discrimination that did not make any specific reference to women. The court relied on the fact that the Tanzanian Government had ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), as well as other international treaties and covenants, to find that women were constitutionally protected from discrimination. The court stated that "the principles enunciated in the above named documents are a standard below which any civilised nation will be ashamed to fall". The High Court decided that the rules of inheritance in the Declaration of Customary Law were unconstitutional and contravened the international conventions which Tanzania had ratified. Thus, the rights and restrictions around the sale of clan land are the same for women and men. |
