gender and the politics of the land reform process in tanzania

Gender and the Politics of the Land Reform Process in TanzaniaAuthor(s): Ambreena ManjiSource: The Journal of Modern African Studies, Vol. 36, No. 4 (Dec., 1998), pp. 645-667Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/161928 .

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The Journal of Modern African Studies, 36, 4 (I998), pp. 645-667 Printed in the United Kingdom ? I998 Cambridge University Press

Gender and the politics of the land reform process in Tanzania

Ambreena Manji*

In I998, over seven years after a Commission of Inquiry into Land Matters was appointed by the then president of Tanzania, Ali Hassan Mwinyi, in January i99i, it is expected that a Land Bill will be tabled in the Tanzanian National Assembly. These seven years have witnessed mounting debate on the purpose and direction of land tenure reform. The purpose of this article is to review the debate in order to show that the question of women's unequal rights to land has been almost totally neglected. The article explores the politics of the land tenure reform process in Tanzania, and examines the reasons why the gender gap in the command over property has received little attention. Tanzania is presently at an important juncture in the restructuring of land relations. Since the issue of land reform came to the forefront of the political agenda in the early i99os, an opportunity has existed to address the question of women's ownership and control of land. I argue, however, that this opportunity has not been taken, and that the issue of women's land rights has become marginalised within the debate and consequently in policy.

Examining first what may be termed the mainstream of the land tenure debate, conducted on the whole by those involved in making major policy recommendations and drafting legislation, it is argued that the issue of gender has been largely ignored. There have been a number of opportunities when the specific issue of women's relations to land should have been explicitly addressed in research findings and recommendations. Instead, one sees no more than a passing acknow- ledgement of the gender dimensions of land tenure reform. This is most noticeably the case in the academic writing of those who profess themselves to be most concerned with the land issue as one of democracy and justice. A number of reasons will be canvassed to explain this.

This article goes on to discuss the role of gender progressive groups,

* Lecturer in Law, University of Keele, ST5 5BG. I am grateful to Gordon Woodman and John Harrington for discussions and comments on previous drafts. An earlier version of this paper was presented to a seminar of the Institut fuer Afrikastudien, Universitaet Bayreuth, Germany. I wish to thank all the participants for comments and criticisms.



646 AMBREENA MANJI

such as women's advocacy groups and non-governmental organizations (NGOs), in the land reform debate.' Whilst it might be expected that such groups would be concerned to ensure that women's land rights are addressed, especially when the issue is being neglected in the mainstream debate, it is clear that in Tanzania they have been unable to challenge the marginalisation of gender issues in the reform agenda. I advance a number of reasons why feminist analyses of the land issue have been hampered and why there has been a failure to respond effectively to the opportunity to press the government for reforms to address women's demands.

Women's unequal command of property, and the question of how it might be overcome, merits attention. If there is to be progress, researchers and activists will have to document and theorise women's land relations, and I discuss some issues which might be addressed in order to broaden the land tenure reform agenda. These include questions about the form which women's land rights might take, how they might be achieved, and the strategies which will need to be adopted in pressuring the state for land reforms.

THE CHRONOLOGY OF THE LAND TENURE REFORM PROCESS

In i99i, in manifestation of what has been widely interpreted as a recognition by the Tanzanian government of the failure of its land policies since independence,2 a Presidential Commission of Inquiry into Land Matters (hereafter 'the Commission', widely referred to as the Shivji Commission after its chairman: see below) was appointed. Its terms of reference were, first, to review laws and policies concerning land and to make appropriate recommendations in this regard; and, second, to study the nature of disputes which had arisen as a result of these policies and to suggest solutions. These already broad terms of reference were reinforced with a general, catch-all term which empowered the Commission to: 'look into any other matters and issues connected with land which [it] deems fit for investigation'.

1 The term 'gender progressive' is Agarwal's and as used here, may be taken to mean organizations which are concerned with reducing or eliminating the social, economic and political inequalities facing women in relation to men. See B. Agarwal, A Field of One's Own: Gender and Land Rights in South Asia (Cambridge, 1994), p. 9. For details of such groups in Tanzania, see below.

2 In particular, the process of 'villagisation' which began after the Arusha Declaration in 1967. S. Coldham, 'Land tenure reform in Tanzania: legal problems and perspectives', Journal of Modern African Studies 33, 2 (0995), 227-42. For discussions of the impact of the villagisation programme see J. Cartwright, Political Leadership in Africa (London, 1983); also, A. Coulson, Tanzania: A Political Economy (Oxford, 1982).

3 United Republic of Tanzania, Ministry of Land, Housing and Urban Development, Report



LAND REFORM PROCESS IN TANZANIA 647

Whilst the government may have been prompted to appoint the Commission in order to address the chaotic state of the land tenure system, the timing of the appointment can be attributed to pressure from international donor agencies and financial institutions such as the World Bank and the International Monetary Fund. Internally, the Tanzanian government found itself under pressure from its rural constituents in particular, to confront the many grievances and to resolve some of the pressing land issues with which they were faced as a result of the state's post-independence land policies. The appointment of the Commission came at a time when Tanzania was witnessing a transformation from a one-party to a multiparty political system, and the government no doubt wished to be seen to be actively responding to grievances connected with land.4

Pressure was also being brought to bear upon the government by external bodies. Tanzania's relationship with international financial institutions since the mid- I98os clearly impacted upon its decision. Tanzania began to implement World Bank/International Monetary Fund prescriptions in I982 through a Structural Adjustment Pro- gramme, which was followed between I983 and I985 by the National Economic Survival Programmes I and IJJ5 In the view of the World Bank and the International Monetary Fund, land reform must be at the centre of attempts to restructure the economies of African countries.' From this perspective, land tenure reform is intricately tied to issues of good governance and the operation of a market economy.7

For the purpose of its inquiry, the Commission, chaired by Professor Issa Shivji of the Faculty of Law at the University of Dar es Salaam,

of the Presidential Commission of Inquiry into Land Matters. Volume I: Land Policy and Land Tenure Structure, and Volume II: Selected Land Disputes and Recommendations (hereafter Report I and II, Uppsala, 1994), p. i. The Ministry has limited the distribution of Volume II. For details see I. G. Shivji and W. B. Kapinga, 'Implications of the Draft Bill for the Land Act', Change (Dar es Salaam) 5 (I997), 48-63. Transcripts of the evidence heard by the Commission run to twenty volumes and there are, in addition, several hundred audio cassettes to be found on deposit with the East Africana section, University of Dar es Salaam library (to which the author has had access) and the Tanzania National Archives.

' Just prior to the appointment of the Commission, a mounting number of land disputes and allegations by rural constituents of land-grabbing had been coming to public attention in the press.

a See P. Gibbons, A Blighted Harvest: The World Bank and African Agriculture in the ig8os (London, 1993).

6 For the experiences of southern African countries, for example, see M. Neocosmos, The Agrarian Question in Southern Africa and 'Accumulation From Below': Economics and Politics in the Struggle for Democracy (Uppsala, 1993). For the World Bank's position of land reform see World Bank, Sub- Saharan Africa: From Crisis to Sustainable Growth (Washington DC, i990); J. Platteau, Land Reform and Structural Adjustment in Sub-Saharan Africa: Controversies and Guidelines (Rome, 1993).

7 P. McAuslan, 'Making law work: restructuring land relations in Africa', Third Alistair Berkely Memorial Lecture, London School of Economics, May I996.



648 AMBREENA MANJI

travelled widely all over the country. In addition, it visited Zimbabwe, Kenya and Eritrea in order to investigate systems of land tenure. It is clear from the resulting report that the Commission was concerned to investigate the grievances of land users 'from below' and to respond to their needs. Consequently, the policy recommendations contained in the Report are an accurate reflection of the land problems the Commission felt must be addressed and for this it is to be commended. In relation to gender issues, however, the report suffers from a serious shortcoming. It fails to recognise the land problems faced by women as being capable of distinct analysis. It is of course possible to engage in this without condemning women's concerns to the status of 'problem issues'. Indeed, it is the failure of the Commission to pay particular attention to gender issues which has led to their marginalisation in debate and policy. This will be elaborated upon below.

The two volume report which the Commission submitted in 1992

clearly came as a surprise to the government. Shivji asserts that when the Commission was appointed 'what was anticipated [by the government] was a report that would rationalism and legitimate the impending liberalisation of land in line with the policy diktat of the international financial institutions'.8 Far from doing this, the report recommended inter alia that the radical title to land be divested from the government and vested in the village assemblies and an extra- executive body to be called the National Commission of Lands. It further recommended that a large and powerful part of the executive arm of the government, the Ministry of Lands, be abolished.

Unsurprisingly, the government was not prepared to implement a recommendation which, by abolishing its monopoly of the radical title to land, would have substantially altered the structure of the state. Neither did it look gladly upon recommendations which were not designed to operationalise a land market, but on the contrary to stem land alienation and ensure security of tenure for the peasant producer. In its displeasure, the government refrained from issuing a White Paper setting out its responses to the recommendations, which would have

8 I. G. Shivji, 'Guest editor's introduction: not yet Uhuru', Change 5 (I997), 2-3.

9 An early draft of the National Land Policy, rejecting the recommendation to divest the radical (or ultimate) title to land from the President, argues that '[T]o detach the Head of state from land would be a radical departure from the present land tenure system. Such a change is just like making him and his government beggars for land.' See United Republic of Tanzania, Draft of the National Land Policy (Dar es Salaam, 1993). As Shivji points out, it is remarkable how the feudal notion that there should be a relationship between sovereign and property reappears in republican Tanzania. See I. G. Shivji, 'Contradictory perspectives on rights and justice in the context of land tenure reform in Tanzania', Paper presented to a meeting of the Academic Staff Council, University of Dar es Salaam, March I997, p. I5.




been the normal procedure, and it became clear that it intended to disregard the Commission's report and press ahead with reforms to liberalise the land market. The Ministry of Lands published a National Land Policy in June I995,1O which departed substantially from the recommendations of the Commission of Inquiry." Soon afterwards the British Overseas Development Agency sponsored a consultant, Profes- sor McAuslan of the University of London, to draft a Land Bill based on the National Land Policy. The final draft of the Bill is now almost complete and it is expected that it will be tabled in the National Assembly during I998.12

The split between the opposing positions taken by members of the Commission and the government on the role of the Inquiry and the purpose of land tenure reform continues to characterise the land debate to date. On the one hand, the government, albeit in response to external pressure, saw the demand for reform as an opportunity to create through law a system of land tenure which would facilitate and create a land market, and therefore an enabling environment for investors. On the other hand, some saw the land tenure reform as an opportunity for democratization, particularly in relation to peasants and nomadic communities whose grievances and concerns it hoped to address. The latter position is summed up in Shivji's later explanation that the Commission made its recommendations in the context of what it saw as 'the question of democracy facing the country today'.13

As the land reform debate gathered momentum, the battle between these two positions came to dominate discussions. This is the key to understanding the politics of the land reform process and the neglect of gender issues. The Commission Report and the subsequent National Land Policy and draft Land Bill failed to address gender issues in any depth, and once the main 'protagonists' in the debate took up their positions on the ground of these documents, it appears the fate of women's land rights was sealed. The next section sets out the approach to gender taken in each of these policy documents before going on to trace how the issue of women's land relations has fared since.

United Republic of Tanzania, National Land Policy (Dar es Salaam, 1995). 1 For a detailed discussion of its provisions, see I. Juma, 'Problems of the national land policy',

Change 5 (I997), 18-30- 12 P. MacAuslan A Draft of a Billfor the Land Act (Dar es Salaam, I 996). See also P. MacAuslan,

Clause-by-Clause Commentary on the Draft Bill for the Land Act (Dar es Salaam, i996). 13 Shivji 'Contradictory perspectives'. In particular, Shivji expresses his concern about the

economic and social, not to say political, dangers of large-scale alienation of land to what, following Chossudovsky, he describes as 'Boer farmers on their new trek to the north'. See M. Chossudovsky, 'Apartheid moves to sub-Saharan Africa', Third World Resurgence (Durban) 76 ( I996).



650 AMBREENA MANJI

APPROACHES TO GENDER

This section will explore recent policy documents concerned with land tenure reform in Tanzania, that is the Report of the Commission of Inquiry, the National Land Policy and the draft Bill for a Land Act, in order to show the approaches taken to women's land relations."4 This will be supported by the academic writing of those engaged in research during the Inquiry and the later drafting of legislation, who have produced a number of papers reflecting on their work. These papers are a valuable source of evidence in understanding how the land tenure reform debate took shape and in explaining the marginalisation of gender within the debate.

The report of the Commission of inquiry into land matters

As is clear from the volume of material produced by the Commission's inquiries, it undertook extensive consultations.'5 It is thus remarkable that the Commission's research should yield such a brief discussion of gender issues as that contained in the section of the final report which purports to deal with this subject."6 Its brevity aside, in substance the chapter, which is entitled 'Gender Inequalities and Problems of Female Succession', is more an overview of the current laws relating to women and succession to land than a discussion of the grievances and problems of which the Commission heard evidence. As the chapter title suggests, the Report confined itself narrowly to one aspect of women's unequal rights to land, that of succession. It entirely fails to capture the multitude of ways in which women interact with land, and the complex nature of the discrimination which they face in relation to it.

We are, however, provided with the reason for this severe limitation in a piece of research and a report which lay claim to being detailed and extensive.17 The report contends that the Commission was not required by its terms of reference to study gender aspects of land tenure, and further explains that the Commission was alerted to the need to

14 This is not intended to be a point by point analysis of the documents but rather, a discussion of the approaches adopted in them. This is both because the purpose of this article is to trace the development of the debate rather than the details of specific legal provisions and also, in the case of the draft Bill for a Land Act, its limited availability means it has not been possible to study the draft in detail. I was, however, given brief access to the draft and therefore had an opportunity to study it for broad policy approaches. In addition, these are discussed in MacAuslan 'Making law work'.

15 See footnote 3 above for details of the evidence heard by the Commission. 16 Report I, pp. 249-57. 17 See Shivji, 'Not yet Uhuru', pp. 2-3.



LAND REFORM PROCESS IN TANZANIA 65I

study this aspect of the land issue only when, during an audience with the president of Tanzania, he requested that they look into the question of female succession."8 It is surprising that a Commission that has been described as carrying out its work with 'exemplary vigour'19 should have interpreted its terms of reference so narrowly. There are a number of studies of African countries which draw attention to women's unequal rights to land and the grievances of women in this regard.20 Furthermore, the elimination of gender discrimination is, at least rhetorically, on the political agenda. Why then did the Commission feel itself unable to interpret its terms of reference so as to enable it to look at gender issues?

The first explanation offered in the report is that the Commission viewed women's rights to land as being an issue which fell within the ambit of succession law, and thus outside the scope of a Commission of Inquiry on land matters. It was, therefore, felt to be the responsibility of the Law Reform Commission to look at the impact of succession laws on women. It is arguable that, particularly in connection with Tanzania, where the majority of women are rural and where land is therefore their most significant asset, the distinction upon which the Land Commission relied between land law and succession law is dubious. In a rural economy the form of property most likely to be inherited is land. The fact that the process is governed by laws characterised as laws of succession should surely not have prevented a Commission appointed to look into land matters from addressing questions of succession to land. The fact that there is some overlap between legal areas need not have been fatal to the Commission's investigations.

Moreover, the Commission seems to have taken the view that an investigation of the important issues facing women in relation to land would have yielded only problems of unequal succession. This is clearly not the case. Women's relations to land are complex. They are governed by their roles as food producers for the home and often also for the market. To take the view that women's relations to land are confined to succession is to focus solely on status relationships: it is to see women as embedded in relationships only as wives, mothers, sisters and daughters capable of inheritance- or of disposing of land by inheritance. It ignores the fact that women also relate to the land as farmers and

18 Report I, p. 250. 19 Coldham, 'Land tenure reform in Tanzania', p. 227. 2 On Tanzania, see 0. Mascarenhas and M. Mbilinyi, Women in Tanzania: An Annotated

Bibliography (Dar es Salaam, 1995); also D. Bryceson and M. Mbilinyi, 'The changing role of Tanzanian women in production', Jipemoyo (Dar es Salaam) 2 (i980), 85-I i6.



652 AMBREENA MANJI

workers, and that this throws up problems and grievances which are connected to their role as 'fully acting subjects ',21 whilst being intricately connected to their position as women. The land problems faced by women food producers do not correspond to those faced by men performing the same work. It is, therefore, not possible to argue that women who labour on the land are represented by the Commission's non-gender-specific inquiries. The grievances of women farmers qua women merit and indeed require distinct inquiry and analysis. One of the consequences of the Commission's failure to do this is that a great deal of information on land matters affecting women has been lost. It is possible that such matters, far from relating solely to succession, may have included, for example, women's difficulties in exercising effective management and control of land, problems of access to land and, in connection with the problem of land alienation through land grabbing, details of the specific ways in which this has impacted upon women food producers.

Apart from the Commission's argument that succession issues were outside its remit, the second explanation it offers is that its terms of reference did not mandate it to look specifically at gender issues. It is my contention that the Commission felt unnecessarily restrained by its terms of reference. As explained above, the Commission's terms of reference were very broad and a number of them could have been relied upon in defending a decision to look specifically at women's concerns in relation to land. Failing this, the Commission could have resorted to the final catch-all term, mandating it to look into such 'other matters as it sees fit'. In this connection, it is clear that what was missing was not the appropriate mandate but rather the political and intellectual will to address women's concerns.

Rather than investigating women's grievances and then going on to frame recommendations which would ameliorate the problems faced, the Commission report, in the chapter on gender merely summarises the recommendations it has made and applies them to women, trying to explain how each of the main recommendations will 'assist in softening the rigours of gender inequality'. For example, the report suggests that the general recommendation that land should be vested in village assemblies is bound to have consequences for gender inequality. These consequences are not elaborated upon: 'Village assembly is a body in which men and women participate. The impact of this on gender

21 A. Whitehead, 'Women and men, kinship and property', in R. Hirschon (ed.), Women and Property - Women as Property (London, 1984).




relations so far as land is concerned remains to be seen '.22 In saying this the Commission is not responding to women's demands nor is it developing proposals from evidence it has heard. Rather, it is trying to demonstrate that the changes it has suggested are relevant to women. However, the Commission's consultations were at best gender-neutral and it can be argued that it would be no more than incidental if women were to attain any benefits from the recommendations. The approach taken by the Commission is reminiscent of the much criticised 'add women and stir' methods of the World Bank's Women in Development initiative in the late eighties. Then as now, attempts to 'integrate' women fail to recognise that this happens on unequal terms,23 and that at best its effects are likely to be palliative rather than trans- formational.24

This failure to address gender issues during the Commission's inquiries and subsequently in its report was the precursor to what has become a permanent tendency in Shivji's writing to marginalise women's concerns. This is discussed in the next section.

Shivji's subsequent writing

Since the government rejected the bulk of the Commission's recommendations before proceeding to draft the National Land Policy and legislation, Shivji has explicitly forged for himself the role of critiquing the direction of the land tenure reform from the perspective of the people, and of asserting what he describes as their perceptions of fairness and justice. This he argues is a direct counter-point to the anti- democratic persuasions of the state and those involved in drafting the land tenure legislation.25 Shivji makes it clear that the intention behind the Commission Report was to suggest tenurial reforms which would answer the needs and grievances of the people, as expressed in the evidence before it. I have taken issue above with the Commission's limited interpretation of what constituted the grievances of the people. Shivji's subsequent writing enables us to extend the analysis by exploring the consequences of his uncritical use of the category 'the people'.

22 Report I, p. 249. 23 S. Jayaweera, 'Structural adjustment policies, industrial development and women in Sri

Lanka', in P. Sparr (ed.), Mortgaging Women's Liyes: Feminist Critiques of Structural Adjustment (London, 1994), pp. 96-s i5. For details of the Women in Development approach, see World Bank, Women in Development: A Progress Report on the World Bank Initiative (Washington, DC, i990).

24 P. Sparr 'Banking on women: where do we go from here?', in Sparr, Mortgaging Women's Lives, pp. I 83-98. 25 Shivji, 'Contradictory perspectives'.



654 AMBREENA MANJI

In a paper written after the completion of the Report in which Shivji reflects on the evident fault line in the land debate, he explains that the different views taken of the purpose of land reform have their origin in 'contradictory perspectives of justice'.26 He posits the views of the people against those of the state.27

A national consensual ideology... cannot be constructed but in contestation between the existing Western/statist/liberal concepts ofjustice and rights and the social democratic conceptions and perceptions... of the majority, the popular classes.

Shivji argues that there is a contradiction between the state's and the people's conceptions of the purpose of land, and therefore of land reform, encapsulated in the complaint heard again and again by the Commission, ' hatukushirikishwa' - we were not consulted - which Shivji labels ' the battlecry of the people'. This, he explains, motivated the Commission to make recommendations which would address the problems of land grabbing and insecurity of tenure. However, it is clear that the phrase 'we were not consulted' has a gender component which he fails to recognise. By interpreting the demand from a feminist perspective, it is possible to scrutinise it more perceptively. Shivji counterposes the views of the state against those of the people, in particular peasants, without paying heed to inequalities within society. In his preoccupation with the state, he does not draw out the implications of the fact that society is structured by many relations of power, such as those between men and women, not simply by relations of the state to the people.

Shivji therefore presents a static picture of rural society as an undifferentiated unit. He does not explore the differential access of men and women to the process of consultation and assumes that the complaint 'we were not consulted' is made by consensus rather than being structured by the relative power of actors within society.28 This is an approach to society extrapolated from both marxist and neo- classical theories of the household which assume that it is characterised by altruism and the equitable distribution of resources.29 Recent

26 Ibid. p. 30. 27 Ibid. p. 30. 28 As Giddens puts it, 'Power is expressed in the capabilities of actors to make certain

"accounts count"'. See A. Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (London, I979), p. 83.

29 G. Hart, 'Imagined unities: constructions of the "household" in economic theory', Draft paper, Department of Urban Studies and Planning, Massachusetts Institute of Technology, I 990;

Agarwal, A Field of One's Own, pp. 52-8I.




feminist critiques have reconceptualised the household as 'a complex matrix of relationships in which there is ongoing (often implicit) negotiation ... subject to constraints...'30 This has come to present a more accurate and empirically grounded picture of households as arenas of cooperative conflict and bargaining over economic, social and political resources, such as the ability to have oneself heard. Shivji's description of the 'battle cry of the people', stemming as it does from a unitary model of society, possesses a neatness and elegance which conceals its inaccuracy.3' One is left with the impression that it is a male voice which pleads 'we were not consulted'.

A more recent paper, 'Reflections on the Woman Question and land', presents Shivji's first contribution to a debate on gender issues.32 As such, it is valuable both as a source of information on his thinking and as a long-awaited engagement with the issue. The paper makes a number of important points which will be discussed, but in essence it has two main objectives. First, it sets out to explain the approach taken by the Land Commission to gender. It replicates once again the methods of the Report by setting out the main recommendations of the Commission and then applying these to women, arguing that 'the approach was to integrate the gender question within the larger land tenure reform'.33 I have already criticised this approach and shown that it is premised on an 'add women and stir' view of land tenure reform which disregards the specificities of women's relations to land. Shivji adds nothing new in this regard. He does not, for example, make a detailed case for the recommendations as they might affect women.

The second purpose of the paper seems to be to bring some conceptual clarity to bear on the question of women and land which, Shivji asserts, has in the debate to date been characterised by confusion leading to the offering of wrong solutions. Shivji, therefore, sets out to define the problem by disaggregating questions of women's access to and ownership of land, control over the products of land, and participation in decision-making, and issues of inheritance and divorce. What follows is a thorough and wide-ranging discussion which encompasses almost every aspect of gender issues as they should have

30 Ibid., p. 54; see also A. K. Sen, Inequality Reexamined (Oxford, I 992). 31 See N. Kabeer, 'Gender, production and well-being: rethinking the household economy',

Draft paper 288, Institute of Development Studies, University of Sussex, 199 I, p. 39, arguing for ' a more "noisy" and messy paradigm of social processes, gaining in explanatory power what is lost in mathematical predictability'.

32 I. G. Shivji, 'Reflections on the Woman Question and land: some debating points', Change 5 (I997), 64-7I. 33 Ibid. p. 69.



656 AMBREENA MANJI

been tackled in the Commission Inquiry and Report. To say this is not necessarily to agree with Shivji's analyses but rather to point out that, had women's relations to land been treated in the depth witnessed here, its marginalisation within the wider land tenure debate might have been avoided. Thus Shivji himself is partly responsible for the conceptual confusion he correctly identifies. I discuss below other possible reasons why such debate as there has been on gender aspects of land tenure reform has lacked conceptual sharpness.

In his paper Shivji urges that gender advocates (his usage) evaluate their demands and approaches in the context of the larger process of democratization. He argues that, if gender advocacy is isolated from the wider context, it may be counter-productive and used to legitimate otherwise anti-democratic policies, although he does not detail how this might occur. It is possible that he is suggesting that gender advocates need to consider carefully with whom they form alliances in order to achieve their objectives. In a debate as riven by divisions as that on land tenure reform in Tanzania, this is indeed an important issue and it is worthwhile to consider Shivji's suggestions.

In common with other states in Africa, Tanzania is at an important juncture in its responses to liberalization and democracy. These questions seem to have become embodied in the debate on the purpose and direction of land tenure reform.34 In Shivji's view, the issues of land and democratization are intricately linked. Land tenure reform has been described by him as 'one of the pivotal issues in the debate on the path of economic development and the future of democracy'.35 Since completing the Commission Report, Shivji has become one of the main proponents of democratic land reform in Tanzania. His founding of the Land Rights Research Institute (HakiArdhi in Kiswahili), a non- governmental organisation, is a sign of his commitment to promoting continued debate on land issues.36 The aims of the institute explicitly mention the advancement and promotion of the rights of peasants and pastoral communities. It is to be hoped that, in contrast to the approach adopted in Shivji's earlier research and writing, account will be taken of the gender dimensions of the land issue.

The active involvement of the institute in generating a debate in which land tenure reform is seen as necessarily encompassing the gender question would contribute to bringing the issue firmly onto the

34 See Chossudovsky, "'Apartheid" moves to sub-Saharan Africa'. 3 I. G. Shivji, 'Land: the terrain of democratic struggles', Change 5 (1997), pp. 4-8. 36 For details of the Land Rights Research Institute, see 'What is HakiArdhi?' Special issue

on 'The land question: democratising land tenure in Tanzania', Change 5 (I997), pp. 77-8I.




political agenda. Indeed, it would be a major flaw in Shivji's role as the main proponent of the democratization position in the land tenure debate if he neglected gender aspects of the issue. It would be a cause for concern if he continued to perceive gender issues as 'the woman question' as suggested by the title of his paper. Were it to remain just that rather than being understood as a matter which has significant economic and social ramifications for society as a whole, there is a risk that it will be relegated to the status of a problem for those he terms 'gender advocates'. This would mirror the way in which the effects of structural adjustment on women are treated not as having important macro-economic implications, but are 'pigeonholed into a social dimension of adjustment... considered "soft", secondary, marginal, the province of a special interest group '.37 It is to be hoped that Shivji will not continue to be complicit in the marginalisation of gender issues, this time ironically through attention rather than neglect, by addressing it in his paper only to throw it back at gender advocates as their concern. Rather than shifting the focus of the debate, this would result in women's land rights remaining the soft supplement to the harder land issues to which the reform debate in Tanzania has been dedicated so far.

The National Land Policy and the draft for a new Land Bill

The drafting of the National Land Policy and the Land Bill has been surrounded by secrecy. Article 55(I) of the constitution gives the president the power to assign governmental business to ministers and ministries.38 In November I995, the ministry in charge of land matters was placed in charge of the National Land Policy.39 Issuing the Policy, the minister of lands, housing and urban development claimed that it was the 'result of extensive consultation and deliberation', and that it incorporated the views of the government on the Presidential Commission Report and the recommendations of the National Workshop on Land Policy held in Arusha in January i995.40 This claim has been contested by Shivji who argues that the Policy, far from responding to the Commission Report, was in fact drawn up before the Commission had completed its inquiry.41

3 See Sparr 'Banking on women', p. i87. 38 Article 55(I) of the Constitution of the United Republic of Tanzania 1977. " By GN 720/1995. See Juma, 'Problems of the national land policy'. 40 United Republic of Tanzania, National Land Policy (Dar es Salaam, 1995), p. ii. 41 Shivji, 'Land', pp. 4-8.



658 AMBREENA MANJI

The National Land Policy and the Bill for a new Land Act subsequently drafted by McAuslan depart substantially from the recommendations of the Shivji Commission. Their objective is clearly to create a suitable environment for investment in land by large-scale buyers and to set up an efficient system for a market in land. Those on either side of the rift in the land debate differ for two main reasons, which may be described as substantive and methodological. The substantive difference centres on the question of the purpose of land tenure reform. As I have shown, the opportunity to implement tenure reform has been perceived variously as a chance to liberalise the land market, and as an opportunity to guarantee security of tenure for the small-scale peasant producer. The methodological differences between those engaged in the land debate, and in particular between Shivji and McAuslan, stem from and are intricately connected to the differences over substantive issues. The two methodological approaches will be traced briefly here. They are important because they have come to dominate discussions about land tenure reform in Tanzania. It will be claimed that as a result the question of women's land rights has been almost entirely neglected.

The Land Bill sets a new precedent in legal methodology in Tanzania. Running to some 300 pages, the Bill is detailed and extensive in scope. In drafting it, McAuslan has explicitly rejected previous approaches to legislation in that country which have favoured broad provisions with fewer rather than more checks and balances. This is the methodology recommended by the Shivji Commission and which McAuslan has labelled 'naive', given the abuses of power by officials uncovered by the Commission itself, for example during the forced collectivization programme, Operation Vijiji.42 The Draft Bill therefore takes the form of 'a detailed and inevitably lengthy new land code in which legal rules and checks and balances replace reliance on administrative and political action based on goodwill and common- sense, on the evidence, in short supply where land relations are concerned .

Shivji's criticism of the Bill's drafting is that it creates an overly bureaucratic structure in which there are even more opportunities for the abuse of official power than previously. It is argued that, by providing for elaborate procedures so that bureaucratic discretion is controlled by law, McAuslan simply lends the exercise of power legality and legitimacy. This is perceived by Shivji as 'delegitimis[ing]

42 McAuslan, 'Making law work'. 4 Ibid., p. ii.




whatever political and ideological constraints might have existed on power-holders under popular ideologies', and this is an argument he uses in his attempts to link the land tenure issue with the wider question of democratization in the country.44

Whilst McAuslan is preoccupied in his writing with setting out and justifying a 'radical legal methodology' for the Land Bill,45 he does deal directly although briefly with the question of women's rights to land. In particular, he raises one issue which will concern all those interested in improving the status of women. It has been claimed by the draftsperson of the policy statement on women's rights in the National Land Policy that the thrust of its wording was lost when it was amended without discussion after the document had already been accepted by the National Assembly.46 In summary, the original statement provided that, in order to enhance women's access to land, they would be able to acquire land in their own right not only through purchase but also through allocation. The benefit of this provision is lost, however, on reading the next two sentences which were allegedly added. These stipulate that inheritance of clan or family land will continue to be governed by custom and tradition, and that ownership of land between husband and wife will not be the subject of legislation.47 The consequence of the policy statement as allegedly amended is clearly to maintain the status quo as regards land relations between men and women in Tanzania. Moreover, McAuslan's attitude to the National Land Policy position on women has been to assume that it need not occupy him. Relying upon an arbitrary and dubious separation of legal spheres, McAuslan's explanation mirrors Shivji's: his brief on the drafting of the new land legislation did not involve succession or marriage law. The reasons why I consider this approach problematic have been set out above.

The final issue relating to gender raised by McAuslan is that of reform of customary land law. The view of the Presidential Commission of Inquiry was clearly that it was not desirable to radically overhaul customary law by statutory reform, a process described as the hard law option.48 Instead, the Commission advocated the adoption of tangential reform in framework legislation such as the constitution to bring about an evolution of customary law.49 This is seen as more likely to facilitate progressive developments such as the decision in the case of Epharahim

" I. G. Shivji and W. B. Kapinga, 'Implications of the Draft Bill for the Land Act', Change 5 (I997), p. 62. 4 MacAuslan 'Making law work'. 4 Ibid., p. 23.

47 Tanzania, National Land Policy. 48 Report I, pp. 249-57. 41 Shivji, 'Reflections on the woman question', pp. 64-71.



66o AMBREENA MANJI

v. Holaria Pastory50 which overturned the customary rule that women, unlike men, could not dispose of clan land even with the consent of the elders.5" In his judgment in that caseJudge Mwalusanya addressed the place in Tanzanian law of both international conventions and recent provisions in the constitution which enshrined the rights of women to equality.52 The judge invoked the Bill of Rights in the constitution, and argued that it took priority over customary law. The court was therefore able to vary a provision of the law of inheritance unfavourable to women. The case has been hailed as a landmark for women's rights in Tanzania.53 In the view of the Shivji Commission, it provides the most constructive way to challenge discriminatory customary laws. Neither Shivji nor McAuslan discusses problematic aspects of this evolutionary approach, the most pressing of which is the question of how women can be expected to mobilise a cumbersome and expensive legal machinery in order to bring test cases to the courts. The issue of whether to tackle customary law through a thorough overhaul of the rules, the hard law option, or to allow the rules to evolve the evolutionary option, remains little theorised. As the following section demonstrates, neither have gender progressive groups engaged with this dilemma which remains as yet unresolved in Tanzania.

It has been shown that the land debate in Tanzania became polarised because of differences over the substantive and methodological directions of tenure reform long before the question of gender received any detailed attention. By the time non-governmental organizations and others concerned with gender issues began to raise objections to the policies being discussed, the debate had hardened into its distinct camps. What follows is an attempt to explain why the women's movement in Tanzania failed to engage in the debate over land tenure reform, thereby allowing the issue of gender to be marginalised.

50 Epharahim v. Holaria Pastory and Another, Unreported Primary Court (Civil Appeal) No. 70 of I 989.

51 This customary rule is codified in the Local Customary Law (Declaration) Order I963. 52 Tanzania signed the United Nations Convention on the Elimination of All Forms of

Discrimination Against Women in i980 and ratified it in i985. In i984, the Fifth Amendment to the Constitution of the United Republic of Tanzania I 977 incorporated a Bill of Rights which by Article I3(4) prohibits discrimination against women.

5 See R. Mtengeti-Migiro, 'Legal developments in women's rights to inherit land under customary law in Tanzania', Verfassung und Reckt in Ubersee (Hamburg) 24 (I991), 361-71.



LAND REFORM PROCESS IN TANZANIA 66i

THE ROLE OF GENDER PROGRESSIVE GROUPS IN THE LAND

REFORM DEBATE

This section explores the role of women's groups in Tanzania during the land tenure reform debate and asks why they have largely failed to draw attention to the issue of women's land rights. The focus is on the larger registered women's associations in Tanzania. There are two reasons for this. First, due to their size and expressed aims, larger associations are vocal on a number of key issues and are therefore best placed to lobby on land matters. Moreover, whilst numerous small, informed associations do exist in Tanzania,54 their ability to make themselves heard is limited precisely by their informal and disparate nature. One would therefore expect larger women's groups to play a key role in the land debate. In this section I show that this has not in fact been the case, and I subject Tanzanian groups concerned with gender issues to a critique which will show that, as presently constituted, they are likely to be ineffective in advocacy on land matters.

Four reasons are canvassed to explain this. First, I argue that the preoccupation of feminist groups with employment as an indicator of women's status has led to a failure to recognise the importance of land as their most valuable asset in a predominantly rural economy. In consequence, in the early i990S women's groups in Tanzania did not sense the importance of the nascent land debate. Second, I argue that, once they did become involved in the debate, their approach was largely technocratic and legalistic. This has meant that they have not been in a position to set the agenda on women's land rights but rather find themselves playing a reactive role to reports and draft legislation. Third, I argue that the origins of feminist groups and their membership of largely urban-based, middle-class women have limited their ability to engage with the issues which most concern rural peasant women. The fourth and related reason offered is that the land issue in Tanzania has crystallised a conflict which was potentially inherent in the class constitution of the dominant women's groups. This is the potential conflict of interest for women who may benefit from the liberalization of the land market, either as business people in their own right or in conjunction with their families.

The formation of non-governmental organizations with the purpose of tackling gender issues in Tanzania dates from the mid- I 98os. At the

5 For a discussion of different forms of women's associations in Tanzania, see A. M. Tripp, 'Rethinking civil society: gender implications in contemporary Tanzania', in J. W. Harbeson et al. (eds.), Civil Society and the State in Africa (London, I994).



662 AMBREENA MANJI

forefront is the Tanzania Gender Networking Programme (TGNP), which was formed in I992 to coordinate women's associations in preparation for the East African Women's Conference in Kampala the following year. It has subsequently come to act as an umbrella organisation for gender related groups and has as one of its main declared objectives the promotion of pressure groups to lobby for policy changes at national and local levels.55 TGNP, together with a professional body, the Tanzania Women Lawyers' Association, has recently become involved in discussions on the land question. However, as shown below, these groups have not as yet offered detailed policy recommendations on the land issues facing women.

The first explanation for the neglect of the land reform debate by the Tanzanian women's movement may be sought in its traditional emphasis on the issue of employment. Drawing on a substantial body of feminist literature in this area, advocates of gender equality have focused on female employment rather than land ownership as a significant factor affecting women's position in society.56 This is an approach adopted widely by feminist groups not only in Africa but also on the South Asian subcontinent.57 It is influenced and reinforced by the attitude of government departments and their bias in policy towards employment issues. These issues clearly inform the work of TGNP as is revealed in its 'Gender Profile of Tanzania'. The situational analysis of women in Tanzania and the review of strategies for change in the profile document indicate a preoccupation with female employment in the formal and informal sectors of the economy. The issue of women's access to, or independent rights in, land does not seem to feature on the policy agenda of TGNP.58

Briefly, this prioritisation of employment over land rights may be criticized on two grounds. First, the majority of women in Tanzania live in rural areas and agriculture remains the most important, and in many instances the sole, livelihood and source of income for the bulk of the rural population. Land provides livelihood, determines status and provides a sense of belonging and identity within a village. It is thus of economic, political and symbolic significance. The second reason is that land is an important asset for women, with distinct advantages over

5 Tanzania Gender Networking Programme, Gender Profile of Tanzania (Dar es Salaam, I993),

P- 3. 56 SeeJ. Sayers et al. (eds.), Engels Revisited: New Feminist Essays (London, 1987); M. Molyneux,

'Socialist societies old and new: progress towards women's emancipation', Feminist Review 8 (I 98 I), I-34- 5 See Agarwal, A Field of One's Own.

58 See TGNP, Gender Profile, pp. 39-I50.




employment and other sources of income. It is clear from a number of studies in East Asia and Africa that when women do succeed in gaining access to waged employment in the non-farm sector of the economy, such as in manufacturing, this is invariably at the most insecure and lowest wage-earning end of the sector.59 Moreover, the manufacturing sector absorbs many more men than women, which suggests that there is little reason to believe that women's entry into the manufacturing sector will lessen the importance of land. Within the non-farm economy, women are open to exploitation by low wages and insecurity, as well as poor working conditions. Moreover, studies of women who remain in the agricultural sector but take wage employment, for example, on plantations, reveal that their situation is not ameliorated and that, once again, women are subject to exploitation.60 Given the inability of the non-farm sector of the economy to absorb the current rural workforce, it is likely that small-holder agriculture, and therefore, access to land, will continue to be of importance because it cannot be displaced by an expanding manufacturing sector.61

The second reason why gender progressive groups have proved weak during the land tenure reform debate has been their overly legalistic and simplistic approach to the issue. The Tanzania land debate is remarkable for its lack of detailed theorisation of how the proposed reforms will affect women. There has been no attempt to set out an independent policy position regarding women's relations to land.62 The contribution of women's groups has been largely to debate the provisions of the draft legislation. This technocratic approach has been an important factor in the failure of the women's movement in Tanzania to address the crucial issues facing women in relation to land. The preoccupation with the details of legal formulations in the Draft Bill has limited the ability of women's groups to formulate their basic demands. They have assumed that problematic aspects of the Draft Bill for a new Land Act could be remedied simply by suggesting minor textual amendments. Their preference for quick-fix solutions to aspects of the draft legislation means they have taken an over-simplistic view of the problems at hand which it is assumed will be adequately addressed by legalistic solutions.

" M. Mies, Patriarchy and Accumulation on a World Scale: Women in the International Division of Labour (London, i986).

60 M. Mbilinyi, Big Slavery: Agribusiness and the Crisis in Women's Employment in Tanzania (Dar es Salaam, i99i). 61 Agarwal, A Field of One's Own.

62 For an assessment of the South African experience, see S. Meer (ed.), Women, Land and Authority: Perspectives From South Africa (Oxford, 1997).



664 AMBREENA MANJI

To date, gender aspects of the land question have been debated in closed shops by a few (self) selected to constitute a group of experts. Thus, a recent workshop held in Dar es Salaam reviewed the Land Bill in order to recommend minor amendments and discussed possible ways to lobby parliament to achieve these changes.63 The proceedings of the workshop reveal that detailed attention was paid to provision after provision of the legislation with little regard to the wider question of the demands of rural women and how they might be met.64 Aspects of the draft Bill discussed during the Consultative Workshop were, for example, the weakness of some interpretation clauses, ambiguities in the construction of legal terms and the powers vested in the Commissioner for Lands by the Bill.65 Given the marginalisation of the issue of women's land rights in all the processes prior to the publication of the Bill, discussed above, the effectiveness of this approach to the debate must be doubted. Tampering slightly with aspects of the Bill will reinforce the marginality of gender issues, by deflecting women's groups from addressing more fundamental shortcomings of the legislation. The workshop should have been an opportunity for a more profound analysis of the implications of the proposed land tenure reform. Drawing on the experiences of other countries, in particular of Kenya and South Africa,66 gender progressive groups in Tanzania must address the issue of women's land rights in a more holistic and pro-active fashion if they are to challenge its marginalisation within the wider land debate and formulate proposals for policy changes which will benefit women.

Third, the failure to engage with policy debates on land has revealed an inherent weakness in the women's movement in Tanzania, that of urban bias. This explains why women's groups were slow to respond to the beginning of a national and reform process. No better example of this urban bias may be proffered than the 'Media Watch ' project of the Tanzania Gender Networking Programme, the purpose of which is to protest sexist language and writing in the media. Without wishing to detract from the idea in principle, I would question the priority

63 Tanzania Women Lawyers' Association, Report of Proceedings and Recommendations of 'Consultative Women's Workshop on the Draft Bill for the Basic Land Act', held at the Russian Cultural Centre, Dar es Salaam, 3-5 March I997.

64 M. K. Rwebangira and H. H. Sheikh, 'Critical review of the Draft Bill for the Land Act from women's perspective', in TWLA, 'Consultative women's workshop'.

65 See I. Maro, 'Women lawyers want Land Bill amended', Daily Nation, 5 March I997. 66 J. Davison, "'Without land we are nothing": the effect of land tenure policies and practices

upon rural women in Kenya', Rural Africana 27 (i987), 19-33; Meer, Women, Land and Authority. More generally, see J. Davison (ed.), Agriculture, Women and Land: The African Experience (London, I 988).




attached to this project. There are clearly a number of more pressing issues facing Tanzanian women than sexism in the media to which it might be expected that women's groups would address themselves. Land rights for women is one such issue.

As well as suggesting the urban bias of the women's groups, this example also reveals the extent to which their agenda is donor driven, so that the issues they tackle are reflections of the issues receiving attention in Western countries with mass media and very different economic and social realities.67 The direct transplantation of Western feminist concerns to Tanzania bears the advantage that the activities of women's groups are easily 'read' by donors, a pressing need in a climate of increasing reliance on foreign aid. Many gender-related NGOs have formed in Tanzania in response to the promulgation of international instruments relating to gender such as the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter CEDAW).68 These NGOs act essentially as foreign funded watchdogs on behalf of international agencies, such as the United Nations, for example by providing alternative country reports to the United Nations on the progress being made by governments in implementing and adopting the principles of CEDAW by legislative and other means.69 They need to ensure that their work is recognizable by, and capable of validation by, an external constituency. A consequence of this could be that the more complex and Tanzania-specific issues of economic deprivation and unequal access to productive resources by women will be allowed to fall by the wayside.

Fourth, the land tenure reform debate has highlighted another important facet of gender progressive groups in Tanzania which may explain their limited success in advocacy on land issues. This is the possibility that class differences between women may have impacted upon the ability of the established women's groups to address the concerns of rural constituents. It is at least probable that middle-class women stand to benefit from the liberalization of land markets

67 C. Mohanty, 'Under Western eyes: feminist scholarship and colonial discourses', Boundary 2 (New York) 12 (1984); for a critique of Euro-American feminism, see P. Parma and V. Amos, 'Challenging imperial feminism', Feminist Review I7 (1984), 3-I9.

68 Convention on the Elimination of All Forms of Discrimination Against Women, i979. Reprinted in P. R. Ghandhi, International Human Rights Documents (London, I995), pp. 82-0o.

69 H. Pietila and J. Vickers, Making Women Matter: The Role of the United Nations (London, i990); M. Freeman, 'Women, development and justice: using the international Convention on Women's Rights', in J. Kerr (ed.), Ours By Right (London, I993); A. Byrne, 'Toward more effective enforcement of women's human rights through the use of international human rights procedures', in R. Cook, Human Rights of Women: National and International Perspectives (Pennsylvania, I 994).



666 AMBREENA MANJI

proposed by the Land Bill. The resource being discussed is a valuable and scarce asset. The dilemmas arising from individual conflicts of interest may be the cause of much of the lassitude on the issue displayed to date. To members of the post-colonial bourgeoisie with the ability to invest in land either individually or together with their families, the demerits of the proposed new land tenure system may not appear glaring. This raises the prospect of a fragmentation of feminist concerns and does not bode well for the future of women's land rights in Tanzania.

This article has explored the course of the land tenure reform debate in Tanzania over the last seven years in order to show that the issue of women's unequal rights to land has received inadequate attention. Within what I have characterised as the mainstream of the debate, the boundaries of which have been set by those engaged in research and the drafting of reports and legislation, there has been an almost complete neglect of gender issues. The tendency has been to subsume women's access to land under that of men rather than to address it in its own right. This marginalisation of gender issues has not been challenged by gender progressive groups in Tanzania who have proved incapable of launching a critique of the reforms or proposing a manifesto of their demands. Rather than setting the policy agenda, they have simply reacted to proposals; rather than presenting detailed analyses of the issues at stake, they have limited themselves to an instrumental approach to draft legislation.

Whilst Tanzania has shown itself relatively ready to adopt equality provisions in international conventions such as the CEDAW, and has incorporated a Bill of Rights into the constitution, it is clear that the state is not altogether progressive in implementing these objectives beyond the level of rhetoric. This obstacle will have to be considered in formulating a strategy for progress on women's rights to land. Unlike south east Asia and southern Africa, where land redistribution to peasant households is firmly on the political agenda, and the campaign for women's rights to land will therefore take the form of demands for distribution to women independently of men, the rest of Africa has inherited conditions in which the land question takes a different form. In Tanzania individualization, registration and titling on the Kenyan model is more likely to be the means by which the state provides women with land rights. Whether this is an objective for which gender progressive individuals and groups should strive needs to be considered,




having regard to the experiences of other African countries. Howsoever the demands of women vis-a-vis land are formulated, they will have to take cognizance of the wider context of democratization and the increasing pressure to create a market in land.

That Tanzania's land tenure reform has followed an undemocratic path to date is clear. It has been characterised by secrecy as to the intentions of the government and as to the content of legislation, and marked by little public debate. The task facing women's groups and others is to engage with, and contribute to, the wider debate on democracy within which the land debate is necessarily located, whilst ensuring that the concerns of women receive attention. This article has suggested that the marginalisation of gender issues in the land debate means there is now much ground to be made up if demands for women's rights to land are to be brought firmly to the centre of the political agenda.

