Polygamy, Property, and Women's Rights

As my first project came to a close, I looked ahead at my next project with nervousness. I had just spent the previous month deeply immersed in criminal law, spanning numerous jurisdictions, entrenched in the world of evidence rules and requirements for the prosecution of sexual assault.

I learned about how judges and juries were required, by law, to draw negative assumptions and inferences in the face of testimony by children and women (cautionary rule), how the word of a lone victim must be met with skepticism (corroboration rules), and that if victims of sexual assault waited to report their assaults, they could be met with skepticism, or worse prohibited from filing their complaint altogether (prompt response rule). 

As I opened and read through my next assignment, which would involve the property rights of non-divorcing wives in polygamous marriage, I wondered if I would have it in me to so-easily shift from the world of criminal law to family law. But, those moments of doubt quickly dissipated as I immersed myself into an area of law I never thought I would. This research proved to be more difficult than the first, but has been very exciting for me as it has involved property rights I have not yet learned about, such as distribution of property at divorce, and constitutional rights I have, such as equal protection and standing requirements. 

Polygamy has been outlawed in many countries of the world, and even in many countries in Africa. In Tanzania, marriage is deeply rooted in traditions. An estimated thirty-five percent of Tanzanians are Muslim, sixty-one percent are Christian, and four percent belong to other religious groups, including traditionalists. It is estimated that over half of the population practice elements of African traditional religions in their daily lives. 

In accordance with the religious beliefs for those professing Islam and for traditionalists, polygamy is therefore widely acknowledged and practiced in Tanzania, and has been protected by law. Additionally, women's property rights have also been protected by law in the event of divorce, where courts have the power to divide matrimonial property between the spouses in order to account for a woman's ownership of property and contributions towards property.

However, there is a gap in the legislation which states that only divorcing parties may appear in front of the court, which means that in polygamous marriages, non-divorcing spouses are not allowed to appear. This disadvantages them, as they are unable to bring forth claims of ownership or contribution towards property, and are not taken into consideration by the courts when the division of matrimonial property occurs. 

For this project, I have been tasked with researching property law regarding the division of matrimonial property, such as separation of property and community of property which involve different rules of ownership at and during marriage. I am also researching comparative jurisprudence on this subject, specifically in other countries that recognize and protect polygamous marriage, as well as international principles and standards laid out for the protection and enhancement of women's rights, specifically regarding property division. 

In addition to this, Tanzania has recently fast-tracked a legislative amendment to prohibit civil society organizations from being able to bring forth human rights violation claims, contrary to a specific constitutional provision that allows this. Following this amendment, only people who have been personally harmed may bring claims forward, which severely restricts the work of many civil rights organizations.

The secondary prong of my research therefore lies in answering the question of whether a civil society organization alongside a harmed individual may bring forth a claim, bringing me back to my constitutional law class and issues of standing. This research is incredibly exciting, but I am also aware of how important and impactful this will be. The amendment was passed in March of 2020, and has been at the forefront of the news ahead of elections this upcoming fall. It has been criticized has impeding justice and violating constitutional rights, and has the potential of severely affecting the ability of civil society organizations to provide legal support.  

As I wait to receive feedback on the first draft of my memorandum, I reflect on how the theories and requirements I learned about in constitutional law come into play an entire world apart from me, yet are deeply interwoven and connected to my existence as a woman.