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The Right to Organise as Mother of All Rights: the Experience of Women in Tanzania

Published online by Cambridge University Press:  11 November 2008

Extract

The right to organise is of the greatest importance because of our need to come together in order to pursue common interests and goals. It goes hand in hand with the right to associate and to assemble freely, covers all sections of society, and its highest manifestation is normally the creation and continuing significance of political parties, trade unions, and other non-governmental organisations.

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Copyright © Cambridge University Press 1996

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References

1 Nyerere, Julius K., Freedom and Socialism/Uhuru na Ujamaa: a selection from writings and speeches, 1965–1967 (Dar es Salaam, 1968), p. 245.Google Scholar

2 Quoted by Wipper, Audrey, ‘Equal Rights for Women in Kenya?’, in The Journal of Modern African Studies (Cambridge), 9, 3, 10 1971, p. 433.CrossRefGoogle Scholar

3 Claude E. Welch, Jr., ‘The Right of Association in Ghana and Tanzania’, in Ibid. 16, 4, December 1978, p. 639.

4 See Eze, Osita C., Human Rights in Africa: some selected problems (Lagos, 1984);Google ScholarRembe, Nasila S., Africa and Regional Protection of Human Rights: a study of the African Charter on Human and Peoples' Rights – its effectiveness and impact on the African states (Rome, 1985);Google Scholar and Peter, Chris Maina, Human Rights in Africa: a comparative study of the African Human and Peoples' Rights Charter and the new Tanzanian Bill of Rights (Westport, CT, 1990).Google Scholar

5 See Benedek, Wolfgang, ‘Peoples' Rights and Individual's Duties as Special Features of the African Charter on Human and Peoples' Rights’, in Kunig, Philip et al. Regional Protection of Human Rights by International Law: the emerging African system (Baden-Baden, 1985), p. 59;Google ScholarPartsch, Karl J., ‘Recent Developments in the Field of Peoples' Rights’, in Human Rights Law Journal (Kehl am Rhein, Germany), 7, 1986, p. 177;Google Scholar and Kiwanuka, Richard N., ‘The Meaning of “People” in the African Charter on Human and Peoples' Rights’, in American Journal of International Law (Washington, DC), 82, 1988, p. 80.Google Scholar

6 This provision is elaborated in A Guide to the African Charter on Human and Peoples' Rights (London, Amnesty International, 1991), p. 30.Google Scholar

7 On these forms of restrictions, see Rembe, Nasila S., The System of Protection of Human Rights under the African Charter on Human and Peoples' Rights: problems and prospects (Roma, Institute of Southern African Studies, National University of Lesotho, 1991).Google Scholar

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10 See Ministry of Community Development, Culture, Youth, and Sports, Situation of Women in Tanzania (Dar es Salaam, 1988), p. 55.Google Scholar

11 Mbilinyi, Marjorie, ‘This is Unforgettable Business: colonial state intervention in urban Tanzania’, in Parpart, Jane L. and Staudt, Kathleen A. (eds.), Women and the State in Africa (Boulder and London, 1988), p. 125.Google Scholar

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15 See Geiger, Susan, ‘Women in the Nationalist Struggle: TANU activists in Dar es Salaam’, in International Journal of African Historical Studies (Boston), 20, 1, 1987, p. 1,CrossRefGoogle Scholar quoted in Mbilinyi, loc. cit. p. 124.

16 Mbilinyi, loc. cit. pp. 123–4.

17 Iliffe, op. cit. p. 531.

18 Glaser, Kurt and Possony, Stefan T., Victims of Politics: the state of human rights (New York, 1979), p. 369.Google Scholar

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20 Iliffe, op. cit. p. 532. See also, Bienen, Henry, Tanzania: party transformation and economic development (Princeton, 1967), p. 187.Google Scholar

21 Barongo, Edward B. M., Mkiki Mkiki wa Siasa Tanganyika (Dar es Salaam, 1966),Google Scholar quoted in Iliffe, op. cit. p. 532.

22 von Freyhold, Michaela, ‘Kitumbi-Chanika and Kitumbi-Tibili: two ujamaa villages that refused to become one’, in Coulson, Andrew (ed.), African Socialism in Practice: the Tanzanian experience (Nottingham, 1979), pp. 75 and 77.Google Scholar

23 Quoted in Bujra, Janet, ‘Taxing Development in Tanzania: why must women pay?’, in Review of African Political Economy (Sheffield), 47, 1990, p. 57.Google Scholar

24 On the dramatisation of their plight by rural women themselves, see Mbilinyi, Marjorie, ‘Structural Adjustment and Agribusiness in Tanzania: struggles over the labour of women peasants and farm workers’, in Taamuli (Dar es Salaam), 1, 1–2, 1990, p. 76.Google Scholar

25 In fact, Nyerere always ensured that the leader of the national women's organisation was one of the 9–10 appointed members of TANU's central committee, starting with the first holder of that post, Bibi Titi Mohamed.

26 Constitution of the Umoja wa Wanawake wa Tanganyika, 1962.Google Scholar

27 The Articles of the Union are reproduced in International Legal Materials (Washington, DC), 3, 1964, pp. 763–9.Google Scholar See also, Lofchie, Michael F., Zanzibar: background to revolution (Princeton, 1965),Google Scholar and Vonhoff, Y., ‘Union Without Unity: the case of Tanganyika and Zanzibar’, Master of Laws dissertation, University of Leiden, 1987.Google Scholar

28 See, inter alia, McAuslan, J. P. W. B. and Ghai, Yash P., ‘Constitutional Innovation and Political Stability in Tanzania: a preliminary assessment’, in The Journal of Modern African Studies, 4, 4, 12 1966, pp. 479515,CrossRefGoogle Scholar and Rabl, Kurt, ‘Constitutional Development and the Law of the United Republic of Tanzania: an outline’, in Jahrbuch des Öffentlichen Rechts der Gegenwart (Tübingen), 16, 1967, p. 567.Google Scholar

29 Constitution of the Jumuiya wa Wanawake wa Tanzania, 1978. For some of the objectives of the UWT,Google Scholar see Wazima, Taasisi ya Elimu ya Watu, Zijue Haki za Wanawake Tanzania (Dar es Salaam, 1984), pp. 22–8,Google Scholar and Situation of Women in Tanzania, pp. 55–9.Google Scholar

30 This was part of the strategy to ensure that the ruling party had total control over all politics in the country. See Msekwa, Pius, Towards Party Supremacy (Arusha, 1977), and the Constitution of Chama Cha Mapinduzi, 1982.Google Scholar

31 The Marriage and the Matrimonial Causes Ordinances were based on the English Matrimonial Causes Act of 1937, although Christians could resort to the Common Law if the need arose.

32 The Marriage, Divorce, and Succession (Non-Christian Asiatics) Ordinance empowered the High Court to apply the laws of the religion of Muslims and Hindus to marriage. Islamic law could also be applied by virtue of Section 14 of the Magistrates' Court Act, 1963, and by Proviso (ii) to Section 9 of the Judicature and Application of Laws Ordinance. It was also recognised in the Mohammedan Estates (Benevolent Payments) Ordinance and the Land (Law of Property and Conveyancing) Ordinance.

33 Section 9 of the Judicature and Application of Laws Ordinance enabled ‘Natives’ to be married and divorced according to their customary rules, subject to the clause that restricted the application of those considered to be repugnant to natural justice or morality. Most of the customary laws relating to marriage and divorce were later unified and codified under the Local Customary (Declaration) Order, 1963. See Rwezaura, B. A., State Law and Customary Law: reflections on their relationship in contemporary Tanzania (Saarbrücken, Europa-Institut der Universität des Saarlandes, 1987).Google Scholar

34 For a thorough analysis of this legislation, see Wengler, Wilhelm, ‘Ein neues Ehegesetz für Tanganjika’, in Zeitschrift für das gesamte Familienrecht (Bielefeld-Bethel, Germany), 18, 11 1971, p. 545;Google ScholarRead, James S., ‘A Milestone in the Integration of Personal Laws: the new law of marriage and divorce in Tanzania’, in Journal of African Law (London), 16, 1, 1972, p. 19;CrossRefGoogle Scholar and Ghai, Yash P., ‘The New Marriage Law in Tanzania’, in Africa Quarterly (New Delhi), 11, 1971, p. 101.Google Scholar

35 The 1971 Law of Marriage Act also affected the following Ordinances: Adoption, Cap. 335; District Courts (Separation and Maintenance), Cap. 335; Maintenance Orders (Enforcement), Cap. 275; and Affiliation, Cap. 278.

36 See, for example, the judgement of Chief Justice Hamilton in the Kenyan case of R. vs. Amkeyo, No. 7 of 1917, in East African Law Reports (Nairobi), p. 14,Google Scholar whose decision was in a way supported much later by the reference to African marriage as being simply ‘concubinage’ by the East African Court of Appeal in Abdul Rahman Bin Mohammed and Another vs. R. [1968] E. A. 188. On this,Google Scholarsee Cotran, Eugene, ‘The Changing Nature of African Marriage’, in Anderson, J. N. D. (ed.), Family Law in Asia and Africa (London, 1968), pp. 1533.Google Scholar

37 According to Caplan, Patricia, ‘Cognatic Descent, Islamic Law and Woman's Property in the East African Coast’, in Hirschon, Renée (ed.), Women and Property – Women as Property (London and Canberra, 1984), p. 32, ‘In Islamic societies marriage is a contract between two individuals, not a religious sacrament. A marriage ceremony includes very little religious ritual, apart from a few prayers. The Kadhi asks the couple if they are willing to marry, declares the amount of marriage payment (mahari) which the groom promises the bride, and then tells them “live together with goodness, and if you divorce, do this also with goodness”. Right at the time of inception of the contract, then, the possibility of its being broken is foreseen’.Google Scholar

38 Landberg, Pamela, ‘Widows and Divorced Women in Swahili Society’, in Potash, Betty (ed.), Windows in African Societies: choices and constraints (Stanford, 1986), p. 114.Google Scholar

39 Quoted in Langley, Winston E., Women's Rights in International Documents: a source-book with commentary (Jafferson, NC, and London, 1991), p. 89.Google Scholar

40 See Connors, Jane, ‘Legal Position of Women’, in Ivan-Smith, Edda, Tandon, Nidhi, and Connors, , Women in Sub-Saharan Africa (London, The Minority Rights Group, 1988), p. 12.Google Scholar

41 Ibid.

42 Civil Appeal No. 70 of 1989 is analysed fully by Kabudi, Palamagamba John, ‘The Judiciary and Human Rights in Tanzania: domestic application of international human rights norms’, in Verfassung und Recht in Übersee (Hamburg), 24, 3, 1991, p. 271.Google Scholar See also, Rose Mtengeti-Migiro, ‘Legal Developments on Women's Rights to Inherit Land under Customary Law in Tanzania’, in Ibid. 24, 4, 1991, pp. 368–9.

43 The Standard (Dar es Salaam), 22 01 1971, quoted in Mbilinyi, loc. cit. p. 67.Google Scholar

44 Ibid.

45 See Tenga, Nakazael L., ‘Women's Access to and Control of Land in Tanzania’, in Wildaf, (ed.), Women, Law and Development in Africa — WILDAF: origins and issues (Washington, DC, OEF International, 1992), p. 181.Google Scholar

46 Bujra, loc. cit. p. 56.

47 See Rwezaura, B. A., ‘Division of Matrimonial Assets Under the Tanzania Marriage Law’, in Verfassung und Recht in Übersee, 17, 1984, p. 179.CrossRefGoogle Scholar

48 For instance, in Omari Oberi vs. Maria Nyakagere, High Court of Tanzania (HCT) at Mwanza, Civil Appeal No. 181 of 1973, Justice Maganga upheld the decision of a lower court which had awarded the sum of TShs.4,400 to a former wife because she had contributed TShs.200 as far back as 1942 towards the establishment of a fishing business which had turned out to be a success.Google Scholar

49 Law Reports of Tanzania (Dar es Salaam), No. 55, 1977.Google Scholar

50 High Court Digest (Dar es Salaam), No. 175, 1971.Google Scholar

51 HCT at Dar es Salaam, Civil Appeal No. 10 of 1980.

52 HCT at Dar es Salaam, Matrimonial Case No. 6 of 1977, unreported.

53 HCT at Mtwara, Civil Appeal No. 28 of 1975, unreported.

54 HCT at Dodoma, Civil Appeal No. 28 of 1975, unreported.

55 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 9 of 1983.

56 See Peter, Chris Maina and Wambali, Michael K. B., ‘Independence of the Judiciary in Tanzania: a critique’, in Verfassung und Recht in Übersee, 21, 1, 1988, p. 86.CrossRefGoogle Scholar

57 Rwezaura, loc. cit. p. 193.

58 See Ismail, M. A., ‘Public Interest Litigation’, Tanganyika Law Society Seminar, Dar es Salaam, 01 1984.Google Scholar

59 (1979) Weekly Law Reports (London), 377.Google Scholar

60 See ‘Law and Society: division of matrimonial assets’, in Sunday News (Dar es Salaam), 22 01 1985.Google Scholar Also, Legal Aid Committee, Essays on Law and Society (Kampala, 1985), ch. 11.Google Scholar

61 See Rwezaura, B. A., ‘Presumption of Marriage in Tanzania’, in Verfassung und Recht in Übersee, 18, 1985, p. 169.CrossRefGoogle Scholar

62 See Wanitzek, Ulrike, ‘The Situation of Unmarried Mothers and Their Children in Tanzania – Protective Legislation and Social Reality’, in von Benda-Beckman, Franz et al. (eds.), Between Kinship and the State: social security and law in developing countries (Dordrecht, 1988), pp. 317–38.Google Scholar

63 If a woman gets pregnant before the expiration of the three years she is not entitled to any maternity leave, and must either resort to her annual leave which is 28 days, or else take leave without pay.

64 See also Article 11(2) of the Convention on the Elimination of All Forms of Discrimination Against Women that was adopted by the United Nations General Assembly in December 1979.

65 See Bryceson, Deborah Fahy, ‘The Proletarianization of Women in Tanzania’, in Review of African Political Economy, 17, 0104 1980, p. 21.Google Scholar

66 Coulson, Andrew, Tanzania: a political economy (Oxford, 1982), pp. 205 and 342, fn. 10.Google Scholar

67 For further information concerning these higher education entry conditions and their effects on the economy, see Bukuku, Enos S., The Tanzanian Economy: income distribution and economic growth (Westport, CT, and London, 1993), p. 191.Google Scholar

68 This explanation is, in fact, misleading. The actual aim was to check radicalism in institutions of higher learning, not least since these were the only sources of challenge to the almighty party and its government, and hence had to be controlled. On the 1974 Musoma resolution and its background, see Peter, Chris Maina and Mvungi, Sengondo, ‘The State and Student Struggles’, in Shivji, Issa G. (ed.), The State and the Working People in Tanzania (Dakar, 1985), pp. 155–94.Google Scholar

69 Resnick, Idrian N., The Long Transition: building socialism in Tanzania (New York and London, 1981), p. 116.Google Scholar

70 Nyerere, Julius K., The Arusha Declaration: ten years after (Dar es Salaam, 1977), p. 13.Google Scholar

71 According to Rafferty, Maura, ‘Women, Development and Adult Education in Tanzania’, in Hodd, Michael (ed.), Tanzania after Nyerere (London, 1988), p. 128, this helpful academic concession was one of the successes of the UWT.Google Scholar

72 See Hevener, Natalie Kaufman, International Law and the Status of Women (Boulder, CO, 1983), p. 215.Google Scholar

73 ‘Tanzania’, in Africa South of the Sahara, 1994 (London, 1993), p. 886.Google Scholar

74 Commission's Report, Vol. 1, para. 386, p. 113.

75 See the Constitution of Jumuyia ya Wanawake Tanzania (UWT), 1978.Google Scholar

76 Daily News (Dar es Salaam), 27 07 1994.Google Scholar

77 Elimu ya Uraia Kwa Wanawake Wapiga Kura na Agenda ya Wanawake Katika Uchaguzi Mkuu wa Mwaka 1995, Dar es Salaam, 07 1995.Google Scholar

78 See ‘BAWATA waonywa: Acheni Kujihusisha na Siasa – Mwinyi’, in Uhuru (Dar es Salaam), 19 09 1995.Google Scholar

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