Kyalow
JF-Expert Member
- Mar 6, 2011
- 3,548
- 2,571
On 28th May, 2020, His Lordship Mlyambina in the case of *Judith Patrick Kyamba Vs Tunsume Mwimbe, Probate and Administration Cause No. 5 of 2016* held that a child born out of wedlock is entitled right to inherit estate of his father even after he attains the age of majority of 18 years or above notwithstanding the fact the Law of Child Act defines a child to mean a person below 18 years.
His Lordship Mlyambina has moved one step further from where Mruma, J ended in the case of *Elizabeth Mohamed vs Adolf John Magesa administration Appeal No 14 of 2011.
I strongly wish that the law should expressly entitle a child born out of wedlock right to inherit estate of his or her father, however, the law as it stands today by necessary legal implications goes against this wish.
There *is no* express provisions in *the Constitution of United Republic of Tanzania, 1977* which expressly protects a child born out of wedlock, unlike its counterpart, *the Ethiopian constitution* in which there are express provisions to that effect.
Article 36 (4) of the Constitution of Federal Republic of Ethiopia, 1994* mandatorilyprovides that children born out of wedlock have the same rights as children born of wedlock.
So, constitution of Tanzania *cannot* be trusted with certainty to protect the child born out of wedlock given the fact that treating the child born out of wedlock equally with child born of wedlock is most likely to be inconsistent with, and repugnant to, the Constitutional Right of Freedom of Religion, Conscience and Faith guaranteed and protected by *Article 19 of the Constitution* of United Republic of Tanzania, 1977 as under Christinity, Islam and African traditional beliefs, a child born out of wedlock *is not* entitled to inherit estate of his father as I am going to substantiate shortly.
It is my humble opinion that under laws of Tanzania as they stand today, person born out of wedlock cannot inherit estate of his deceased father who dies intestate or father who left him out in his Last Will.
*Section 10 of the Law of the Child Act, 2010* entitles a child right to *"Reasonable Enjoyment"* out of estate of his father, and this provision does *not* entitle child right to own or right to posses property out of estate of his father and such right of *"Enjoyment"* of estate of his father is not absolute as it is required to be reasonable, it is subjected to reasonability.
Distinction must be drawn from following 3 concepts relating to property namely;
(1) Enjoyment
(2) Possession
(3) Ownership
Enjoyment means right of person to use property but without title to such property and without physical control of the property. For example, if child lives in the matrimonial House , it is just enjoyment of the property (House).
Possesion means right to have physical control of the property but without title to such property.
Ownership means that a person has legal title to the property , he owns such property even such property is not under his physical control (possesion).
So, Section 10 of the Law of the Child Act, 2010, limits the right of child to *Right of Enjoyment* and it does not extend such right to *Right to Ownership* or Right to Title of the property of his father.
Worse still, *Section 36 (4) of the Law of the Child Act, 2010* provides that child born out of the wedlock can inherit estate of his father but *subject to religious belief* of his biological father. Islam, christianity and customary law do not recognise right of child born out of the wedlock to inherit estate of his father. So, subjecting right of child born out of the wedlock to religious belief of his father practically means that illegitimate child cannot inherit estate of his father who dies intestate or if father left him out in his Last Will.
That being said, I am of the firm view that decision in the case of *Elizabeth Mohamed Vs Adolf John Magesa, Administration Appeal No. 14 of 2011* with regards to right of child born outside the wedlock to inherit estate of his father was given _per incurim_ in the light of provisions of *Sections 10* and *36 (4) of the Law of the Child Act, 2010* and the light of case of *Violet Ishengoma Kahangwa & Another Vs Administrator General & Another, Civil Appeal No. 17 of 1989*.
The parliament purposefully employed the term *"Reasonable Enjoyment"* and purposefully *subjected* the inheritance Right of Child born out of the wedlock to religious belief of his father because doing otherwise would have led the conflict between of Holy Books of Islam and Christianity especial *the Holy Bible* and *the Holy Hadith* of Prophet Muhammad in one hand and the *the Law of Child Act, 2009* in the other.
From christianity perspective, it is clear under Book of *Genesis 21:10 -14* and Books of *Galatians 4:30* that illegitimate child cannot inherit estate of his father and Islam takes similar stance _as per_ Hadith of Prophet Muhammad narrated *Abdullah ibn Amr ibn Al-As* which found in collection *Sahihi Abu Dawood*, among others.
So, if *the Law of the Child Act, 2009* could have made it mandatory for illegitimate child to inherit estate of his father automatically this statute *would be in conflict* with the *Holy Bible* and *Holy Hadith* of Prophet Muhammad, so the Court of Law would have been forced to declare some verses of Holy Bible and some Hadith of Prophet Muhammad to be illegal thereby _null_ and _void_ for being inconsistent with and repugnant to provisions of *the law of Child Act, 2019*, this would be *"dangerous move"* for any government that wishes to retain political power and legitimacy and that wishes to maintain national peace and unity.
I would like to share with you the wisdom of *Msumi, J* (as he then was) in the case of *Anwar Z. Mohammed v. Saidi Selemani Masuka, Probate and Administration Cause No.44B of 1995* regarding the conflict between Holy Quran and the Constitution of Tanzania, in this case wisdom of *Msumi, J* observed as follows;
_“In his submission the learned counsel for the applicant. urged the court to ignore this rule of Islamic law because it infringes the constitutional right of a person to own property and dispose it in a manner he wants. I must say that I was utterly astounded by this submission. The Islamic rules of inheritance are part of religious tenets enshrined in the Qur’an. It is mandatory that an estate of a deceased Muslim must be administered in accordance with these rules. Hence any attempt of interpolation on these rules amounts to amending the Qur’an. *I don’t think anybody wishing this country good can encourage a court of law to entertain such a move.”*_
For the sake of argument only, let us assume that *the Law of the Child Act, 2009* confers right on child born out of wedlock to inherit estate of his father, so another contradiction of *the Law of the Child Act, 2009* would be that this statute confers right on child born out of wedlock right to inherit estate of his father at time he is a minor with no legal capacity to own property and takes away such right when a former child attains age of majority and acquires legal capacity to own property as person who is born out of wedlock of age of majority is not protected by provisions of *the Law of the Child Act, 2009* as this statute does not apply to a person aged 18 years or above as such person does not fall in the meaning of the term *"Child"* as defined by *the Law of the Child Act, 2009*.
His Lordship Mlyambina has moved one step further from where Mruma, J ended in the case of *Elizabeth Mohamed vs Adolf John Magesa administration Appeal No 14 of 2011.
I strongly wish that the law should expressly entitle a child born out of wedlock right to inherit estate of his or her father, however, the law as it stands today by necessary legal implications goes against this wish.
There *is no* express provisions in *the Constitution of United Republic of Tanzania, 1977* which expressly protects a child born out of wedlock, unlike its counterpart, *the Ethiopian constitution* in which there are express provisions to that effect.
Article 36 (4) of the Constitution of Federal Republic of Ethiopia, 1994* mandatorilyprovides that children born out of wedlock have the same rights as children born of wedlock.
So, constitution of Tanzania *cannot* be trusted with certainty to protect the child born out of wedlock given the fact that treating the child born out of wedlock equally with child born of wedlock is most likely to be inconsistent with, and repugnant to, the Constitutional Right of Freedom of Religion, Conscience and Faith guaranteed and protected by *Article 19 of the Constitution* of United Republic of Tanzania, 1977 as under Christinity, Islam and African traditional beliefs, a child born out of wedlock *is not* entitled to inherit estate of his father as I am going to substantiate shortly.
It is my humble opinion that under laws of Tanzania as they stand today, person born out of wedlock cannot inherit estate of his deceased father who dies intestate or father who left him out in his Last Will.
*Section 10 of the Law of the Child Act, 2010* entitles a child right to *"Reasonable Enjoyment"* out of estate of his father, and this provision does *not* entitle child right to own or right to posses property out of estate of his father and such right of *"Enjoyment"* of estate of his father is not absolute as it is required to be reasonable, it is subjected to reasonability.
Distinction must be drawn from following 3 concepts relating to property namely;
(1) Enjoyment
(2) Possession
(3) Ownership
Enjoyment means right of person to use property but without title to such property and without physical control of the property. For example, if child lives in the matrimonial House , it is just enjoyment of the property (House).
Possesion means right to have physical control of the property but without title to such property.
Ownership means that a person has legal title to the property , he owns such property even such property is not under his physical control (possesion).
So, Section 10 of the Law of the Child Act, 2010, limits the right of child to *Right of Enjoyment* and it does not extend such right to *Right to Ownership* or Right to Title of the property of his father.
Worse still, *Section 36 (4) of the Law of the Child Act, 2010* provides that child born out of the wedlock can inherit estate of his father but *subject to religious belief* of his biological father. Islam, christianity and customary law do not recognise right of child born out of the wedlock to inherit estate of his father. So, subjecting right of child born out of the wedlock to religious belief of his father practically means that illegitimate child cannot inherit estate of his father who dies intestate or if father left him out in his Last Will.
That being said, I am of the firm view that decision in the case of *Elizabeth Mohamed Vs Adolf John Magesa, Administration Appeal No. 14 of 2011* with regards to right of child born outside the wedlock to inherit estate of his father was given _per incurim_ in the light of provisions of *Sections 10* and *36 (4) of the Law of the Child Act, 2010* and the light of case of *Violet Ishengoma Kahangwa & Another Vs Administrator General & Another, Civil Appeal No. 17 of 1989*.
The parliament purposefully employed the term *"Reasonable Enjoyment"* and purposefully *subjected* the inheritance Right of Child born out of the wedlock to religious belief of his father because doing otherwise would have led the conflict between of Holy Books of Islam and Christianity especial *the Holy Bible* and *the Holy Hadith* of Prophet Muhammad in one hand and the *the Law of Child Act, 2009* in the other.
From christianity perspective, it is clear under Book of *Genesis 21:10 -14* and Books of *Galatians 4:30* that illegitimate child cannot inherit estate of his father and Islam takes similar stance _as per_ Hadith of Prophet Muhammad narrated *Abdullah ibn Amr ibn Al-As* which found in collection *Sahihi Abu Dawood*, among others.
So, if *the Law of the Child Act, 2009* could have made it mandatory for illegitimate child to inherit estate of his father automatically this statute *would be in conflict* with the *Holy Bible* and *Holy Hadith* of Prophet Muhammad, so the Court of Law would have been forced to declare some verses of Holy Bible and some Hadith of Prophet Muhammad to be illegal thereby _null_ and _void_ for being inconsistent with and repugnant to provisions of *the law of Child Act, 2019*, this would be *"dangerous move"* for any government that wishes to retain political power and legitimacy and that wishes to maintain national peace and unity.
I would like to share with you the wisdom of *Msumi, J* (as he then was) in the case of *Anwar Z. Mohammed v. Saidi Selemani Masuka, Probate and Administration Cause No.44B of 1995* regarding the conflict between Holy Quran and the Constitution of Tanzania, in this case wisdom of *Msumi, J* observed as follows;
_“In his submission the learned counsel for the applicant. urged the court to ignore this rule of Islamic law because it infringes the constitutional right of a person to own property and dispose it in a manner he wants. I must say that I was utterly astounded by this submission. The Islamic rules of inheritance are part of religious tenets enshrined in the Qur’an. It is mandatory that an estate of a deceased Muslim must be administered in accordance with these rules. Hence any attempt of interpolation on these rules amounts to amending the Qur’an. *I don’t think anybody wishing this country good can encourage a court of law to entertain such a move.”*_
For the sake of argument only, let us assume that *the Law of the Child Act, 2009* confers right on child born out of wedlock to inherit estate of his father, so another contradiction of *the Law of the Child Act, 2009* would be that this statute confers right on child born out of wedlock right to inherit estate of his father at time he is a minor with no legal capacity to own property and takes away such right when a former child attains age of majority and acquires legal capacity to own property as person who is born out of wedlock of age of majority is not protected by provisions of *the Law of the Child Act, 2009* as this statute does not apply to a person aged 18 years or above as such person does not fall in the meaning of the term *"Child"* as defined by *the Law of the Child Act, 2009*.
