Thursday June 04, 2009 Equal protection to underlie matrimonial property outcomes SALMA MAOULIDI, 4th June 2009 @ 04:56, Widows have challenged courts use of succession laws to deny them a share of jointly acquired property by wrongly classifying it as the deceased's property. In Scholastica Benedict v. Martin Benedict, another case heard in Mwanza that went on appeal a widow disputed her step son's right over property left by her deceased husband, mainly a house located on a surveyed plot, in urban Bukoba District, and in which she had resided with the deceased for over 15 years. In the case the widow argued that the home was a matrimonial home. She was thus entitled to reside in it regardless of her husband's death. The court, applying Haya customary law, held that a widow has no right to inherit from her husband lest he is the last surviving member of his clan and therefore had no inheritors. The court went on further to give her an option under Haya law which essentially gave her an option of going to live with her daughter, an issue of the marriage who had inherited a less developed rural 'shack'; choose to be inherited by a suitable member of her husband's relatives who was willing to inherit her. Scholastica chose not to be inherited so the court ordered her to vacate the matrimonial home and to reside with her daughter. To note is that the decision was passed after Tanzania adopted the Bill of Rights which encouraged more progressive interpretation of rights. It is therefore interesting if on review the court would come to a similar conclusion. In sum, the court categorically denied Scholastica her share of property she had helped acquire through joint effort, when it refused to consider her argument that the home was a matrimonial home acquired during the marriage. In so doing the court disregarded the provision of the LMA requiring it consider the contributions of each party by applying customary law, and treating it as a succession issue. Moreover the court shows its obvious gender bias when it fails to consider that Scholastica's daughter was an only issue of the marriage and was more entitled to the property than the stepson who only came to the property by virtue of his ties to the deceased. Otherwise he had no role in creating the wealth nor was his father in possession of any wealth when he married Scholastica. This apparent favoritism towards male subjects persists to date. A recent inheritance appeal from Ifakara involving the distribution of the estate of Hassan Kassim Fusi is in point. Hassan Kassim Fusi died intestate in 2001 leaving behind him a wife and children. The deceaseds wife Ashura filed a suit against respondent Ayubu Said Myokole, younger brother of the deceased acting as the administrator of the estate over the division of the estate. Ayubu divided the estate between the deceaseds mother, two wives and 14 children. Ashura Fusi was dissatisfied and applied to have the order varied arguing that what was being distributed was purely matrimonial property. The Primary Court agreed with Ashura but on appeal the District Court reversed the ruling arguing that in the division of assets in the administration of estates the cardinal principle is the equal right of heirs and not the principle of equality of division of property in matrimonial law. Dissatisfied with the narrow ruling she appealed to the High Court to restore the initial ruling In an interesting show of legal acrobatics the High Court rejected Ashuras case, basing on arguments that are flimsy at best and contradictory at best. While the court rejected considering the argument of matrimonial property it went on to consider other facts that are prejudicial to the appellant. Rather than establish its own facts the Court upheld with few questions the findings of the administrator as well as the lower court with respect to the deceaseds dependants. The court went on to find the second wife being involved with the deceased in a mixed marriage, albeit the law applied was customary. One begs the question why in Marijani v. Marijani a similar finding was not arrived at leaving long time partners of a Muslim man, one Christian and the other Muslim out in the cold even though they and their children were recognized by the family. Another question the Court refused to engage with concerned who is entitlement to inherit the deceased, in view of the deceaseds multiple relationships even though such a finding has a direct bearing on her status as well as that of her children. In essence, deceased husbands continue being rewarded for marital indiscretions while widows continue to bear the burden of those indiscretions. In Marijani v. Marijani the family, with the assistance of the court, sought to make the deceased more Muslim in death than he was in life: calling for Islamic Law apply to apply meant that the deceaseds partners nor their children stood a chance to inherit anything he left behind regardless of how it was acquired. After all, immediately after a man dies everything is listed and assumed to belong to him, the head of household. In some cases even the wife is to be inherited like a chattel. In Fusis case, the court swung in the opposite direction denying a legitimate wife a share of matrimonial property while allowing a concubine and illegitimate children the same. In both cases, the decisions as to who should get and who should be denied are made by male relatives of the deceased, who may play a very small part in the everyday life of the family in question. At this juncture we need to ask, what is the logic of having persons not party to the matrimonial union, calling the shots and affecting the futures of those who were party to the matrimonial union? Why does this practice of assuming patronage over the family only happen when a man dies and not when a man is widowed? Where do we place the doctrine of equal protection if the law is applied such that the outcome favours husbands, even in death, over wives in so far as safeguarding their property interests?