The book offers a rich, descriptive overview of the issue of land and gender in the semi-urban periphery of Arusha, Tanzania. The text is cogent, well-organised and crisp.
The book opens with a lively description of Arusha and surrounding areas. A nuanced characterisation of how land is acquired, held and transferred is to the point, and will be familiar to most who work on land tenure in Africa. Still, one learns unexpected facts. For example, by 2010 about 50% of land in Arusha District Council had been surveyed and titled, but in surrounding villages only four villages had land registries and few had village land certificates, even though 74 of 76 villages had officially confirmed boundaries. The proverbial ‘last mile’ in bureaucrat-land had not been travelled. The land registration process was clearly not functioning very well.
The book's focus is how women obtain and retain land. There a concise description of women's secondary rights status and conflicts arising at inheritance and marriage. Tanzania has lagged, according to Dancer, in reforming inheritance laws (known as laws of succession). Land mortgage law has changed, though, requiring more affirmative diligence by the lender to ensure that a wife, as co-owner, was agreeing to a mortgage with land as collateral.
The heart of the book is description and analysis of judicial and popular discourses surrounding and interpreting land law, at multiple levels. Customary adjudication remains the principal arena where land rights are contested. Customary principles, while evolving, are mired in gender inequality. Dancer does a nice job of describing how legal pluralism possibly compounds this. Lower levels of justice (ward tribunals and village land councils) are not required to follow any explicit statutory principles. They can set rules of evidence according to circumstances, and adopt procedures that might lead to reconciliation if they desire. This intended flexibility results in male domination in three important aspects of the processes for resolving disputes: hearing oral testimony, evaluating written documentation proffered as evidence, and conducting ‘on site’ investigations.
Procedural justice is further complicated in Tanzania by intermixing of executive and judicial powers. This is true in many other African countries, especially in rural areas, where administrators act as veto-actors, determining whether a case can go to court in the first place. Because local political actors enjoy such wide latitude to control dispute resolution mechanisms, proceedings are not fair and balanced but rather personal and political. Dancer has a clear précis of the different positions involved: some advocate for broad land legislation that relies on ‘goodwill and common sense’ at the village level, and others advocate for detailed, specific land legislation that would mandate specific outcomes for a catalogue of disputes. Both positions have merit, but advocates of one or the other often come across as disingenuous or naïve.
Dancer adduces some real and interesting facts: pursuing court cases is expensive and even in local village courts bribes are expected (Ward Tribunals, for example, charged fees to recover costs, even though there was no provision for this in law); the published records of judicial decisions are 10 years behind schedule; language barriers structurally disempower women who are least likely to be comfortable speaking in Swahili or English, let alone reading court documents; and many legal professionals in Tanzania are comparatively insensitive to gender issues.
The book is strewn with compelling case studies of land disputes involving women. A theme of many of the case studies is that women were subject to verbal and physical abuse and intimidation. But to this reviewer, the case studies further illustrate the great difficulty of dispensing justice even if all the practical problems and pervasive social discrimination and gender violence were addressed. The fundamental legal issue remains unsettled, it seems. This is true across the continent, and not just for gender issues. Social relations continue to matter for land allocations. Most tenure systems, in practice, are not close to the ‘anonymity’ of freehold. Women's secondary status as rights holders is a social relationship and not a legal relationship. So if a woman's social network stands and claims she does not have social status to hold a particular piece of land, how is the legal structure to affirm the contrary?
Towards the end of the book, Dancer helicopters high over courthouses and shambas, and addresses a broader discourse. Seeming to have the academic legal consultant in mind, she argues there exists a tension between formalistic international rights-based approaches and ‘popular’ justice discourses that are framed using the Swahili word haki. But there is no tension: rather there is misrecognition or a translation problem. The local term haki is very broad, referring to reconciliation, social peace, punishment, impartiality and procedural consistency. These are all reasonable values that are often at odds. Local haki discourses appear not to contradict basic human and legal rights asserted in the international discussions; rather the discourse appears to balance those rights with other considerations. Judges everywhere have to appreciate the weighing scales. There is no reason that rights-based approaches to land cannot recognise that judges have to balance competing principles, consequentialist considerations and social realities. At the end of the day, the real tension is between haki and another local discourse of male privilege that goes unnamed. What would be the Swahili equivalent of chauvinism or anti-feminism? The tension, it seems to this reviewer, is within haki: between discourses that make natural male privilege and those that assert gender equality. That issue, of gender equality writ large, remains the proverbial ‘elephant in the room’ of discussions of gender and land.
Dancer's fine investigation of land tenure issues for women in the Arusha region of Tanzania will be beneficial reading for academics and legal professionals interested in land tenure issues in Africa.
