1.0 Introduction.
Tanzania is the secular state established by the
constitution of the United Republic of 1977. The country has number of tribes;
they are about or more than 123 tribes with different customs and traditions.
These tribes however have different Customary Law governing their daily
conducts on matters of life like inheritance issues within the families and
within the community at large.
Apart from customary laws, there also other laws
governing inheritance matters within the same societies in the country, these
are statutory laws and religious laws.
This discussion
is therefore make focus on the extent on legal multiplicity as well as problem
caused by such multiplicity of laws in the issue of inheritance matters in
Tanzania. So the Laws to be discussed are grouped into three categories;
Customary Laws, statutory Laws, and Religious Laws-Islamic Laws and Hindu Laws.
2.0 Customary Laws;
Tanzania mainland has many tribes with many
pieces of customary law rules governing inheritance issues. In most cases many
tribes groups follow patrilineal community rules. Matrilineal societies are
mostly remained disadvantages on issues of inheritance especially where there
is a need to prove the matter before the court of law. Thus, application of
customary law in both communities, Partrilineal and matrilineal is that one
should qualify the community she or he belong, and the mode of life. So if
he/she does not qualify the particular community he /she considered to be
abandoned himself from the particular group, and hence the law applicable on
inheritance is the statutory law responsible to the issue. In Re Innocent Mbilinyi,[1]
George C.J (as then he was), stated that; it satisfied that the deceased
abandoned customary way of life in favour of what may be called a Christian and
non-traditional way. There is satisfactory evidence that was to a large extent
alienated from his family and that his children has no connection whatever with
them. Accordingly I would direct that the law to be applicable in
administration of the estate of the deceased should be Indian succession Act.
Thus, for the customary to be applicable in the
inheritance of the Estate in court of law, one should prove mode of life and
affairs of the deceased was governed and regulated under customary law during
his/her life times. The deceased family must be fully connected with the
customs and traditions of the particular tribal group. The same position is
seen in the provision of section 11(1)(a-c) of the Judicature and Application
of laws Act[2]
which states that;
“Customary law shall be applicable in matters of civil nature between
members of community in which rules of relevant to the matter established
relating to the status and succession to a person who is a member of that
community with the reason of the connection to the relevant issue with any
customary obligation.”
3.0 Statutory Laws;
Matters of inheritance in Tanzania are not only
regulated by customary law but also, there several pieces of Legislation
regulating and governing the same matter, these are imported and those enacted
law by the National Assembly.
The Indian
Succession Act of 1865 is one of the oldest laws imported from India in
1907. The Act adopted in Tanzania so as to be applicable in inheritance issues
to Christians, and those modes of life their affairs do not follow under
customary laws or Mohammedan laws (Islamic laws).Under
the Indian Succession Act illigemate children were excluded from
inheriting their father’s estate as it
was in the case of Manugwa Lutalamila VS. Martha Lutalamila[3],
the urban
Primary court at Mwanza rejected respondents claim that her exclusion from
inheriting part of father’s estate was unfair.
The Land
Act of 1999 considers inheritance over Land where the property is jointly
occupied by the spouses. The Act provides for the transfer of the property
(land) to the persons jointly occupy it that may transfer his interest
intervivos to all occupiers[4].
The Law of
Marriage Act[5],
regulates inheritance (succession of matrimonial assets or home by the widows
and their status to the society. The Act protects inheritance of the deceased’s
estate by the widow and their status upon death of the husband. Provision of
section 59(1) provides for the constructive caveat to the spouse to inherit
properties or estate left behind by the deceased.
4.0 Religious Laws.
In Tanzania inheritance matters are not only by
the customary and statutory laws, there also religious laws which governed and
regulate the subject matter. The law to be discussed in this part is Mohammedan
law (Islamic Law) and Hindu law. Tanzania has number of Legislation which provides
for the application of Islamic law in the matter relating
inheritance/succession.
The Islamic law applies where party to the case are members to the Islamic faith.
Islamic law does not apply where the manner of life of the deceased person show
the intention that his estate wholly or party to be governed with customary
laws or statutory law, or the Islamic law will not apply where the deceased
person himself make declaration through written or oral that upon his death
customary law should apply on inheritance of his estate. The same was seen in Re Estate of the late Suleman Kasundwa[6], where
the court stated that, it can not be held that the rights of an African Muslim
wife at and during her marriage are to be governed by Muslim law, her right of
inheritance upon her husbands death are to be governed by her tribal custom,
which may give her no such right. So for a person to win the suit under Islamic
Law must show the mode of life they were living before the deceased’s death.
Under Islamic Law non Islamic members are not entitled to inherit estate of the
deceased Muslim even a Muslim to marry a non Muslim wife.
Like the Indian succession Act, Hindu Laws of inheritance was imported
and adopted in Tanzania mainland to be applicable to Hindu community. The law
was limited and applied to few Hindu communities, and to those who profess the
Hindu religious only.
5.0 The problem of Multiplicity of Laws.
As I have discussed Laws governing inheritance in
Tanzania, there is problems causes co-existence of laws in one jurisdiction.
One of the problems is the colonial
administration which imported and adopted laws which were previous not found in
African societies.
Urbanization, civilization and intermarriage
among African societies with different customs, traditions and religious rites have caused multiplicity of laws
in solving inheritance/succession problem in the society.
The other problem is the women and men
involvement in Economic activities outside their family clan ethnic group and
religious affiliations.
Court of law has in certain extent caused
multiplicity of laws upon administration of justice to the people of the same
jurisdiction.
6.0 Conclusion.
The question of inheritance is available to any
community, tribe and religious in Tanzania. But in many areas the community has
been treated by different laws which have caused problem of choice and
application of the proper law to administer justice in the court of law, even
to regulate daily conduct over inheritance; Therefore there is need for the
society find out a proper law that combine and administer inheritance issues
prejudice of rights and obligation of the mass.
Bibliography.
The Constitution of the United Republic of 1977,[as
amended from time to time],Government Printer, DSalaam.
Statutes.
The Land Act no 4 of 1999, Government
Printers,Dsalaam.
The Law of Marriage Act [Cap.29,RE2002],Government Printers, Dsalaam.
The Judicature and Application of Laws Act [Cap,358,RE2002],Government
Printers, Dsalaam.
The Indian Succession Act,1865,Government
Printers ,Dsalaam.
Cases.
Re Innocent
Mbilinyi(1969) HCD n.283.
Manugwa Lutalamila v
Martha Lutalamila (1982) TLR 98.
Re Estate of Suleman
Kasundwa(1965) EA 247.
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