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Tanzania has signed up to key international Protocols, and its constitution provides that men and women are equal, with a prohibition on laws that discriminate between them. But these and other measures haven’t had the effect that law-makers might have hoped. Writing a chapter in a new book about women, judges and courts in Africa, Tanzanian high court judge and former academic, Juliana Masabo, says that a strong thread of gender inequality continues through society, mostly perpetuated ‘through patriarchal systems, customs and traditions’.
Among the ‘pervasive forms of violence’ still continuing to manifest in Tanzania are rape, sexual harassment, domestic violence, child/forced marriage and the denial of property ownership and inheritance.
And it’s not just men who hold these views, Masabo quotes a survey showing that almost 60% of women in Tanzania believe a husband is justified in beating his wife if she ‘burns food, argues with him, goes out without obtaining his permission, neglects the children, or refuses to have sex with him.’
Alert
Obviously, there’s a serious need for training so that the courts don’t fall into the same way of thinking, and so they are alert to challenge them when views like this are offered in evidence or argument.
For example, judicial officers need to know the ‘gender dimensions of law’ and how this undermines women. But how are they to get the information they need? - never mind the crucial training that will allow judicial officers to identify and deal with similar oppressive views they might themselves hold, as a result of their own background and personality.
The kind of courses that would expose would-be lawyers to these gender-related aspects of the law are mostly not available in the local law schools, she says. And when they are, students choose electives that will lead to a career with high paying clients.
Diploma
The training policy of Tanzania’s judiciary shows the situation could be even worse among magistrates most of whom have a certificate or diploma, rather than a law degree. Gender aspects of law aren’t included in the curricula for the certificates, something that Masabo says is a particular concern because magistrates are often involved in applying customary law, and women from rural areas are obvious users of these courts. These two factors mean that disputes involving gender issues in Tanzania ‘are adjudicated by persons who literally have no exposure to the gender aspects of the law.’
Tanzania’s Institute of Judicial Administration has also not been the answer to the problem, with ‘attention to gender’ in the courses offered, being ‘obscured’ in favour of a focus on procedural and other skills. But other outside organisations have had some success, particularly the Tanzania Women Judges Association (TWJA). The Chief Justice, Ibrahim Hamis Juma, who is a patron of the association, is a strong supporter of gender equality in adjudication, and the judiciary has worked well with the TWJA on gender-related issues.
The main objective of TWJA is to advance women’s rights by, among others, uprooting gender bias from the judicial system and the community. To reach this goal, the association introduced gender training for the Tanzanian judiciary, and in its first three years, it trained about 250 judicial officers and officials of law enforcement organs.
‘Emancipatory tool’
This section of Masabo’s chapter with details of the kind of training offered by TWJA, the trainers and the programmes offered, is particularly interesting. One of the most significant achievements she records is the 2016 judgment of the High Court, later upheld by the apex Court of Appeal, declaring sections of the marriage laws a nullity. These laws allowed girls aged 14 and 15 to marry, and the courts found this infringed the constitutional principle of equality. The decisions were further inspired by the Maputo Protocol and the African Charter on the Rights and Welfare of the Child.
The judgments are seen as an ‘emancipatory tool for girls’ who would otherwise be forced into marriage while they were still children.
Masabo then looks in some detail at improvements in the adjudication of sexual offences as a result of training, as well as a growing ‘progressive jurisprudence in matrimonial and inheritance matters.’
Unreliable
What of the future? She writes that the sustainability of TAWJA’s judicial training programmes is under threat because the association’s funding is unreliable. Funding, sometimes available from the judiciary, was minimal and ‘not steady either’. As a result, the number of training opportunities offered by TAWJA is reducing all the time.
Against the decline in programmes, there’s also the problem that some courts still cite and apply outdated principles, to the detriment of the women appearing before them. This may be reversed on appeal, but not everyone has the funds to challenge a case.
Masabo is also concerned that some judicial officers are not showing enough attention to various important issues when they handle sexual offences and she urges that a way be found to offer more training, with a focus on a number of specific problems that she discusses.
Replicated
It’s a fascinating article, outlining problems that could be replicated in several jurisdiction, but also highlighting the successes that have been made possible through good training course.
As a matter of interest, I followed up on the article by reading a three, randomly selected recent judgments from Tanzania’s high court and the Court of Appeal. Would there be any evidence one way or the other, of the problems she discussed, or perhaps a heightened awareness of ‘gender-related issues’?
In the case of Peter Kashuma, appealing against conviction and sentence in a rape case, the Court of Appeal ordered that the teenage girl whom he had allegedly raped, should not be named. The judges wrote, ‘For the purpose of protecting her identity, in this judgment, we will refer [to] the girl as the "victim" or "PW1". That step needs to be noted and commended, since courts in a number of jurisdictions still don’t seem to give much thought to this issue.
Language
In her article, Masabo mentioned that cultural and other factors often made it difficult for witnesses to speak about what happened in rape claims: appropriate language was difficult for them to find. Although her point about language difficulties relates to witnesses, I noticed, in the same Kashuma case, that the three appeal judges dealt efficiently and in a matter-of-fact way, with Kashuma’s argument that the blood found in the vagina of the teenager he was charged with raping, could have been menstrual blood.
In a high court decision about a divorce, the judge, while naming the parties, made a point of hearing the two young children in the matter before deciding with which parent they should stay.
And in a case involving a deceased estate, high court judge Mohommed Gwae made an interesting comment that seems to indicate he was well aware of the gender equality framework in which he had to operate. He criticised the paucity of evidence and the few witnesses called by the plaintiff, saying that her version ought to have been corroborated by one or more other family members.
The judge said that in making that comment, he was ‘not holding so simply because the plaintiff is a female heir since our law and international law recognise inheritance by women, as well as recognition of equality before the law by our Constitution, 1977, but in the circumstances of this case, in my decided opinion, there ought to be other pieces of evidence from reliable witnesses particularly from the deceased’s family.’
