Widows, AIDS, Health and Human Rights in Africa

Abstract

"Widows, both child and adult in Tanzania, as in many other parts of the world, face discrimination on a regular basis. Such discrimination commonly destroys a woman's ability to live a life outside of poverty. In the face of the suffering and injustice widows endure throughout Africa, and elsewhere, there is no consensus on the importance of changing the customary legal rules relating to widows, and on the larger question of the proper place of customary law and harmful traditional, cultural, and religious practices in the changing African society. Yet practices which hitherto have been taken as settled and widely accepted are now being challenged in the face of the changing socioeconomic conditions in Africa, flagrant human rights violations, the health and human rights movement, and the AIDS epidemic.

In many African countries social and legal structures are the result of three coexisting cultural layers: The traditional, the colonial, and the post colonial economic, social, and political structures, rendering unviable the current sustained blanket application of traditional cultural practices unrealistic and unjust to a majority of African women, whose voices are not yet fully represented in national policy debates today. Though family patterns, on which the traditions were based, have drastically changed, customary laws of the past are still applied. While some may argue that the forced entry of African traditional societies into the capitalist economy has been imposed by colonial imperialists, the fact is these changes exist, Africa has been transformed and adaptation is necessary, and an idealization of the traditional past with an extended family that no longer exists in its traditional form is not helpful to creating the responsive institutions for Africa today.

The extended family is not a static unit, but a dynamic entity customized by persons to fit their purposes. Customary laws and practices, if ever appropriate can no longer be justified in Africa under the guise of protecting the extended family, even if customary laws and practices were ever reasonable and justifiable in the past. A rejection of the customary rules of inheritance today by the growing women's movement in the continent stems from their inability to deal with changing circumstances in Africa. The impact of colonialism, urbanization, globalization, and the emergence of modern states in the continent have produced irreversible social, cultural, and economic changes in the continent which cannot be readily ignored. Welshman Ncube argues there is no fidelity in reasserting customary laws which are oppressive and politically fabricated for advantage and not even actually based on kinship or the public good. Rather, the concern should be to remake our laws in such a way that they are fair, just and reasonable.

African widows have no choices other than those perpetuating the domination of widows by male relatives, e.g., choices to accept her husband's brother as a husband, residing with married children who may mistreat them or accepting horrific treatment of widows. The amendment of discriminatory customary laws and practices is demanded in accordance with evolving international human rights standards on equality and non-discrimination. Tanzanian women face such discrimination on a daily basis. The extent of the discriminatory practices in place in Tanzania is evidenced by the current laws on women's intestate succession (i.e., inheritance) rights.

The current Tanzanian laws relating to inheritance rights illustrate women's inequality in the ownership of property, and illustrate persistently unequal conditions of women's lives. Widows and female children in Tanzania traditionally have had little right to inherit property from their husbands' estates even when the property was acquired during the marriage. This issue is further complicated by a three-part legal system consisting of customary, religious, i.e., Islamic law, and statutory law. The uncertainty and confusion surrounding this three-part system compounds existing exploitative practices in inheritance, such as widow inheritance, widow sexual cleansing, and property grabbing. As a result, Tanzanian women and their children, more often than not, are left destitute and homeless upon the death of their spouses. Despite Tanzania's commitment to secure equality for women under its own constitution and under international law, these conditions persist. Indeed, in 2000, the Tanzanian Constitution was amended to include section 13(5) to prohibit gender discrimination.

Tanzania has also signed and ratified a number of international treatises in its efforts, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the African Charter on Human and People's Rights. Notwithstanding its efforts to date, Tanzania has not eradicated discrimination against women. Tanzania has an obligation based on its own law and international commitments to guarantee women's equality in all aspects of life, including the law relating to intestate succession, and to eliminate laws, cultural practices, and beliefs that act as legal barriers to that equality. Inheritance rights are a critical issue for women because traditionally in many African countries, rather than offer protection to widows, common law and statutory laws in the country perpetuate the discrimination against them.

The experiences of African widows range from disinheritance and forceful deprivation of property to the mandatory observance of harmful rituals. While important in its own right, the issue of inheritance rights also illustrates more broadly women's inequality in the ownership of property and in marriage and provides a window into the persistently unequal conditions of women's lives throughout Africa. Finally, the issue of women's inheritance rights provides an opportunity to assess the efficacy of legislation in guaranteeing women's rights and changing longstanding social practices."

This 112-page study concludes with recommended reforms, including Tanzanian national laws that supersede customary and Islamic law and support for a new and uniform law.