Legal pluralism and women's rights: a study in postcolonial Tanzania.

• Author: Calaguas, Mark J.

Shindano is a sixty-year-old woman who lives on the island of Zanzibar, a semi-autonomous region of Tanzania. (1) She has been residing in the small village of Mkokotoni, where she has had to survive without support from her husband Abu for the last five months. After five years of marriage, Abu ordered Shindano out of his home, telling her to "leave [his] house and go back to be with [her] fellow dogs, slatterns, and lunatics." (2) While Abu initially supported her for a few months, he has not helped her financially for some time. Shindano now seeks to dissolve her marriage to Abu in the local kadhi's court, claiming that Abu's statements and actions constitute a divorce under Islamic law. The court denies Shindano's request because Abu never uttered or wrote the appropriate |slamic divorce formula. She is ordered to return to her husband and treat him well; the court orders Abu to support his wife and respect her.

This story is an example of a typical divorce proceeding within the kadhi's court system of Zanzibar. Had Shindano been a man, however, or a non-Muslim, or a resident of mainland Tanzania ("Tanganyika"), the result of this proceeding may have been very different. Courts in Tanganyika and Zanzibar each recognize and enforce the right of Muslim men to unilaterally divorce their wives under Islamic law. Yet, Tanganyika's family law additionally provides for a uniform, secular marriage dissolution process, which is available to both men and women regardless of religious affiliation. In Zanzibar, marriages between Muslims are dissolved solely in accordance with principles of Islamic law, while non-Muslims do not have any official statutes to govern their divorce proceedings.

The United Republic of Tanzania ("Tanzania") is a political union of two semi-autonomous entities: the mainland area of Tanganyika and the islands of Zanzibar. (3) It is a nation composed of multiple ethnic, religious, and tribal groups. Like most of its African neighbors, Tanzania underwent a period of colonization, during which a series of European nations ruled over both Tanganyika and Zanzibar. These colonizers established a dual system of law--one legal system for the European population and another for the indigenous inhabitants. Following independence, Tanzania and its neighbors on the continent sought to shed this discriminatory form of justice and establish a system that represented and respected the culture of its people. Because the geo-political borders drawn by European colonial powers were virtually arbitrary in nature, many of the newly-independent states that succeeded those former colonies also inherited the same political boundaries. As a result, countries such as Tanzania are populated by a heterogeneous citizenry, the members of which belong to any number of ethnic, racial, religious, and tribal communities.

This Article uses Tanzania as a case study to examine the problems that arise when a multicultural society adopts a pluralist system of justice in order to preserve the traditions of its diverse communities. The authors illustrate that, despite Tanzania's considerable efforts to balance individual and group rights, its political leaders have replaced the nation's colonial legal system with one that is still fragmented and discriminatory. In order to accommodate its various religious and ethnic groups, Tanzania established a pluralistic legal system that, while laudable in its objectives, denies some of its citizens the basic equal protection guarantees provided in the Tanzanian Constitution and under international law. This problem is especially symptomatic in family law, a sensitive area that implicates the most sacrosanct of personal relations and delineates the outermost boundaries of community membership. As evidenced by the laws of marriage and divorce currently in force, Tanzania affords its citizens radically different rights based on their gender, religion, and place of origin. While Tanzanian matrimonial law represents a relatively narrow field of academic inquiry, the lessons drawn from an investigation into this legal and cultural milieu can be illuminating when placed within the context of larger issues affecting multicultural societies. The so-called "paradox of multicultural vulnerability" (4) affects not only young, postcolonial nations in Africa (5) and India, (6) but also individuals in cosmopolitan, economically-developed countries such as Israel, (7) the United States, (8) and Canada. (9)

Part I of this Article describes the phenomenon of legal pluralism and the impact it has on the individual rights of women belonging to communities whose discriminatory cultural practices have been accommodated by the state. (10) Part II narrows in on Tanzania by offering a brief political history of the nation, (11) while Part III describes the development of Tanzania's multifaceted legal system. (12) Part IV surveys the current law of marriage and divorce in Tanzania, highlighting the differentiated nature of justice available to parties in both Tanganyika and Zanzibar. (13) Part V then explores ways to alleviate the discrimination written into Tanzania's marriage and divorce laws while acknowledging the significant obstacles that hinder programs for reform in Tanzania. (14)

1. LEGAL PLURALISM AND WOMEN'S RIGHTS: AN OVERVIEW

   Like many countries that lived through the colonial experience, Tanzania inherited a "legal stew" of European laws superimposed upon or existing concurrently with indigenous systems of customary and religious law. (15) This phenomenon, known as "legal pluralism," has given rise to a field of academic inquiry devoted to the study of how multiple sets of norms, both statutory and customary, interact with each other and affect their subjects. (16) For the purposes of this Article, the investigation will be limited to the "juristic" view of legal pluralism, which refers to a situation where "the sovereign commands different bodies of law for different groups of the population varying by ethnicity, religion, nationality, or geography, and when the parallel legal regimes are all dependent on the state legal system." (17)

   Not surprisingly, the legal pluralist paradigm has been criticized for a number of reasons, chiefly stemming from its reputation as being "unnecessarily complex, as denying the principle of equality before the law, [and] as underpinning grossly unjust modes of production or racial discrimination." (18) The argument for applying simpler rules of law springs from the idea that justice is not easily achieved if its administration is too complicated. (19) Perhaps even more troublesome is the issue of equality before the law. Tanzania's pluralist legal system, which is the main focus of this Article, is a prime example of multicultural accommodation, wherein the state "attempts to facilitate groups' practices and norms, for example, by exempting group members from certain laws, or by awarding identity groups some degree of self-governance." (20) As a result, legal pluralism "provides for different norms to be applied to different persons in the same situation." (21)

   Although unequal treatment of individuals does not automatically make a set of laws unjust, (22) systems that follow a model of multicultural accommodation pose a unique problem, which Ayelet Shachar identifies as "the paradox of multicultural vulnerability." (23) In a diverse nation-state, allowing various religious and cultural groups to manage their own affairs in areas like family law increases the autonomy that these populations enjoy. (24) Indeed, the idea that multicultural accommodation is antithetical to the principles of liberal democracy has eroded in recent years. (25)

   Unfortunately, expansion of communal rights can encroach on the individual rights of particular group members who also fall within "traditionally subordinated classes, such as women." (26) Where group norms provide for discriminatory treatment of such classes, "the state's multicultural policies conflate the language of 'respect to groups' with a license to subordinate specific group members." (27)

   Over the years, scholars and activists, particularly in the area of international development, have engaged the problem of women's rights and cultural tradition in the developing world in a number of ways. (28) During the early 1970s, the liberal feminist movement sought to end the invisibility of women in the economic life of impoverished nations by decrying "backward and oppressive traditions that constrain women's freedom." (29) However, casually denouncing traditional practices as retrograde and incompatible with the modern concept of human rights glosses over the complex dynamics of the communities where those rules are applied. As Brenda Oppermann points out, "in many countries traditional law is often the only form of law known to many people, particularly those living in nonurban areas." (30) Thus, customary or religious law may be the chief guarantor of order in communities where the state's reach is weak. (31) Moreover, in relation to the issue of sexual equality, the one-dimensional portrayal of women as long-suffering victims of pre-modern custom ignores the agency of individuals who live out each day by ably negotiating their roles across the social landscape. (32) A binary opposition between helpless Third World women and their liberated Western counterparts can reinforce colonialist stereotypes, (33) with universalist notions of human rights (34) masquerading as "the interrogation of one culture by another culture-specifically, by the Western liberal culture.., that is a logical outgrowth of Christianity." (35)

   The late 1970s ushered in a more class-conscious view of gender relations that relied heavily on Marxist ideals. (36) This materialist view concerned itself with the broader socioeconomic inequalities that ultimately resulted in the exploitation of women. (37) Accordingly, more basic concerns such as the...