4 - Doing Justice in Women’s Claims: Haki and Equal Rights

Summary

This chapter explores processes of justice and decision-making by land courts in practice. In order to contextualise legal approaches to doing justice in women's claims, it is necessary to understand the origins and usages of the Tanzanian notion of justice and rights (haki) and its relationship to other normative conceptions of justice. The concept of haki has a rich linguistic, social and political history which is closely associated with the freedom of the nation and equality between citizens. In the Tanzanian legal context, justice also encompasses values of reconciliation as well as legal principles of ‘natural justice’. All of these concepts are reinforced through constitutional and statutory frameworks, which further inform adjudicators’ approaches to evidence gathering and judging claims. This chapter explores how adjudicators operating within these richly complex normative and procedural frameworks are determining women's claims to land in practice.

The discussion of justice in this chapter draws principally upon fieldwork data collected in ward tribunals and the DLHT in Arusha. Summaries of eleven of the cases discussed in this chapter are set out as case reports in the appendix to this book. The sample is small and not necessarily representative of the way women's legal claims to land are judged more generally. Nevertheless, important themes and practices are clearly evident in the judgments. In the context of wider fieldwork data and other case analyses in the book, the judgments offer insights into the normative and procedural underpinnings of legal decision-making in women's claims. A notable feature in the judgments is that whilst it appears that social norms and practices and judicial attitudes to female land-holding are evolving with current rights discourse, there is an apparent disconnect between these developments and an implicit male bias in the gathering and assessment of evidence. Therefore, the tension between local patrilineal customary practices and principles of equal rights (haki sawa) has yet to be fully resolved in the context of women's legal claims to land.