Ephrahim V. Holaria Pastory and Another in This Case a Woman, Holaria Pastory Had Inherited Some Clan Land from Her Father by A
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Ephrahim v. Holaria Pastory and Another1 In this case a woman, Holaria Pastory had inherited some clan land from her father by a valid Will. Finding that she was getting old and senile and had no one to take care of her, she decided to sell the clan land to one Gervazi Kaizilege, a stranger and non-member of her clan. One Bernado Ephrahim, a member of the clan filed a suit in the Primary Court at Kashasha, Muleba District, praying for a declaration that the sale of the clan land was void under the Haya Customary law - for females have no power to sell clan land. This was in accordance with the Haya Customary Law (Declaration) (No. 4) Order of 1963; specifically, with its paragraph 20, which was to the effect that "women can inherit and acquire usufruct right but may not sell." The Primary Court granted the prayer. She appealed to the District Court at Muleba. Here the decision of the Primary Court was quashed on the basis of the Bill of Rights in the Constitution which guaranteed equality for both men and women. Bernardo Ephrahim was not satisfied and appealed to the High Court of Tanzania at Mwanza. At the High Court, the decision of the district Court was upheld on the ground that the relevant Haya Customary Law was discriminatory on the basis of gender, thus inconsistent with Article 13 (4) of the Constitution. Judgment Mwalusanya, J. I. Introduction This appeal is about women's rights under our Bill of Rights. Women's liberation is high on the agenda in this appeal. Women do not want to be discriminated on account of their sex. What happened is that, a woman one Holaria d/o Pastory who is the 1st Respondent in this appeal, inherited some clan land from her father by a valid Will. Finding that she was getting 1 High Court of Tanzania at Mwanza (PC) Civil Appeal No. 70 of 1989. Reported in [1990] LRC (Const) 757. From District Court of Muleba District at Muleba in Civil Appeal No. 89 of 1988 and Original Civil Case No. 63 of 1988 of Primary Court of Muleba District at Kashasha. Mwalusanya, J. Judgment delivered in chambers at Mwanza on 22nd February, 1990 in the presence of Mr. Jacob Lazaro Mbasa for the appellant and Mr. Henry Andrew Kyaruzi for the 1st respondent, but in the absence of 2nd respondent. 1 old and senile and no one to take care of her, she sold the clan land on 24/8/1988 to the 2nd Respondent Gervazi s/o Kaizilege for shs. 300,000/= This 2nd respondent is a stranger and not a clan member. Then on 25/8/1988 the present appellant Bernardo s/o Ephrahim filed a suit at Kashasha Primary Court in Muleba District, Kagera Region praying for a declaration that the sale of the clan land by his aunt the 1st respondent to 2nd respondent was void as females under Haya Customary Law have no power to sell clan land. The Primary Court agreed with the appellant and the sale was declared void and 1st respondent was ordered to refund the shs. 300,000/= to the purchaser. Indeed the Haya Customary law is clear on the point. It is contained in the Laws of Inheritance of the Declaration of Customary Law, 19632 which in para 20 provides: Women can inherit, except for clan land, which they may receive in usufruct but may not sell. However, if there is no male of that clan, women may inherit such land in full ownership. In short that means that females can inherit clan land which they can use in usufruct i.e. for their life time. But they have no power to sell it, otherwise the sale is null and void. As for male members of the clan the position is different. Cory and Hartnoll in their book on Customary Law of Haya Tribe tells us in para 561 and 562, that a male member of the clan can sell land but if he sells it without consent of the clan members, other clan members can redeem that clan land. The land returns to the clan and becomes the property of the man who repays the purchase price. It will be seen that the law discriminates women as Hamlyn, J. was heard to say in the case of Bi. Verdiana Kyabuje and Others v. Gregory s/o Kyabuje3 that: Now however much this court may sympathise with these very natural sentiments it is in cases of this nature bound by the Customary law applicable to these matters. It has frequently been said that it is not for courts to overrule customary law. Any variations in such law as takes place must be variations initiated by the altering customs of the community where they originate. Thus, if a customary law draws a distinction in a matter of this nature between males and females, it does not fall to this court to decide that such law is inappropriate to modern development and conditions. That must be done elsewhere than in the courts of law. The Tanzania Court of Appeal some 13 years later nodded in agreement with the above observations in the case of Deocres Lutabana v. Deus Kashaga4 as per Mwakasendo, J.A. The rule that females in the Bahaya community do not have the rights to sell clan land was affirmed by the Tanzania Court of Appeal in Rukuba Nteme v. Bi. Jalia Hassani and Another 2 Government Notice No. 436 of 1963. 3 [1968] H.C.D. No. 459. 4 Court of Appeal of Tanzania, Civil Appeal No. 1 of 1981. Reported in [1981] TLR 122. 2 (supra) as per Nyalali, C.J. and later in Haji Athumani Issa v. Rweutama Mituta5 as per Kisanga, J.A. It appeared then that the fate of women as far as sale of clan land was concerned was sealed. The position was as an English novelist Sir Thomas Browne (1605 - 1682) had pointed in his book Religie Medici where he said: The whole world was made for man; but the twelfth part of man for woman: man is the whole world, and the breath of God; woman the rib and crooked piece of man. I could be content that we might procreate like trees, without conjunction or that there were any way to perpetuate the world without the trivial and vulgar way of union. However the Senior District Magistrate of Muleba Mr. L.S. Ngonyani did not think the courts were helpless or impotent to help women. He took a different stand in favour of women. He inter alia, said in his judgment: What I can say here is that the respondents claim is to bar female clan members on clan holdings in respect of inheritance and sale. That female clan members are only to benefit or enjoy the fruits from the clan holdings only. I may say that this was the old proposition. With the Bill of Rights of 1987 (sic) female clan members have same rights as male clan members. And so he held that the 1st respondent had the rights under the Constitution to sell clan land and that the appellant was at liberty to redeem that clan land on payment of the purchase price of shs. 300,000/=. That has spurred the appellant to appeal to this court, arguing that the decision of the District Court was contrary to the law. II. Is the Doctrine that Women Should not be Discriminated Because of Their Sex Part of Our Law? Since this country adopted the doctrine of Ujamaa and self-Reliance discrimination against women was rejected as a crime. In his booklet Socialism and Rural Development Mwalimu Julius K. Nyerere states: ... although every individual was joined to his fellow by human respect, there was in most parts of Tanzania, an acceptance of one human inequality. Although we try to hide the fact and despite the exaggeration which our critics have frequently indulged in, it is true that the women in traditional society were regarded as having a place in the community which was not only different, but was also to some extent inferior. This is certainly inconsistent with our socialist conception of the equality of all human beings and the right of all to live in such security and freedom as is consistent with equal security and freedom from all other. If we want our country to make full and quick 5 Court of Appeal of Tanzania, Civil Appeal No. 9 of 1988 (Unreported). 3 progress now, it is essential that our women live in terms of full equality with their fellow citizens who are men.6 And as long ago as in 1968 Mr. Justice Saidi (as he then was) pointed out the inherent wrong in this discriminatory customary law. It was in the case of Ndewawiosia d/o Mbeamtzo v. Imanuel s/o Malasi (supra). He inter alia, said: Now it is abundantly clear that this custom, which bars daughters from inheriting clan land and sometimes their own father's estate, has left a loophole for undeserving clansmen to flourish within the tribe. Lazy clan members anxiously await the death of their prosperous clansman who happens to have no male issue and as soon as death occurs they immediately grab the estate and mercilessly mess up things in the dead man's household, putting the widow and daughters into terrible confusion, fear, and misery. It is quite clear that this traditional custom has outlived its usefulness. The age of discrimination based on sex is long gone and the world is now in the stage of full equality of all human beings irrespective of their sex, creed, race or colour.