630 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. VII:599
in Tanzania and around the world have recognized that discriminatory inheritance
laws violate this basic equality principle.
212
Ephrahim v. Pastory, [1990] LRC (Const.) 757, 763 (Tanz. High Ct. 1990) (finding that
restricting women’s inheritance of clan land “flies in the face of our Bill of Rights as well as the
international conventions to which we are signatories.”); Ndeamtzo v. Malasi, [1968] HCD 127, 99
(Tanz. High Ct. 1968) (“[D]aughters, like sons... should be allowed to inherit the property of their
deceased fathers whatever its kind or origin, on the basis of equality.”). Discriminatory inheritance laws
have further been struck down by the Constitutional Court of South Africa, the Court of Appeals of
Nigeria, the High Court of Zambia, and the Supreme Courts of South Korea, Nepal, and India. Bhe v.
Khayelitsha, paras. 61-60, 2004 (1) BCLR 1 (CC) (S. Afr.) (“The exclusion of women from inheritance
on the grounds of gender is...a form of discrimination that entrenches past patterns of disadvantage
among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible
with the guarantee of equality under this constitutional order.”); Ukeje v. Ukeje, [2001] 27 W.R.N. 142,
160 (Ct. App. Lagos Division, Nigeria) (declaring “Igbo native law and custom which disentitles a
female... from sharing in her deceased father’s estate” void for unconstitutionally discriminating
against women); Muojekwu v. Ejikeme, [2000] 5 N.W.L.R. 402 (Ct. App. Enugu Division, Nigeria);
Mojekwu v. Mojekwu, [1997] 7 N.W.L.R. 28 (Ct. App. Enugu Division, Nigeria); T
HE INTERNATIONAL
SOCIETY OF FAMILY LAW,THE INTERNATIONAL SURVEY OF FAMILY LAW 467 (Andrew Bainham ed., 2001)
(discussing the Zambian High Court decision of Gabula v. Mwanza); World Briefing, Asia, South Korea:
Ruling Expands Women’s Rights, N.Y. T
IMES, July 22, 2005, at A6 (discussing the South Korean Supreme
Court’s decision); FAO L
EGAL OFFICE,LAW AND SUSTAINABLE DEVELOPMENT SINCE RIO:LEGAL TRENDS
IN AGRICULTURE AND NATURAL RESOURCE MANAGEMENT
(FAO LEGISLATIVE STUDIES) 250 (2002),
available at http://www.fao.org/DOCREP/005/Y3872E/y3872e0a.htm; (discussing Dhungana v. Nepal,
4 S.Ct. Bull. 1 (Nepal), and Kishwar v. Bihar, (1996) 5 S.C.C. 125 (India)).
Under international law, the right to equality explicitly encompasses inheri-
tance rights at the dissolution of marriage. For instance, the ICCPR guarantees
“equality of rights and responsibilities of spouses as to marriage...and at its
dissolution.”
213
The Human Rights Committee elaborated on this, explaining,
“Women should... have equal inheritance rights to those of men when the
dissolution of marriage is caused by the death of one of the spouses.”
214
Denying women inheritance because of their gender has no rational basis.
215
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as... sex.”); African Charter, supra note
201, arts. 3, 18(3) (“Every individual shall be equal before the law [and] [e]very individual shall be
entitled to equal protection of the law.” Furthermore, “[t]he State shall ensure the elimination of every
discrimination against women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions.”); CEDAW, supra note 199, arts. 2(e), 15(1)
(States must “take all appropriate measures to eliminate discrimination against women by any person,
organization, or enterprise” and “shall accord to women equality with men before the law.”).
212.
213. ICCPR, supra note 197, art. 23(4); see also CEDAW, supra note 199, art. 16(1)(c) (“States
Parties... shall ensure, on a basis of equality of men and women...the same rights and responsibilities
during marriage and at its dissolution.”); UDHR, supra note 194, art. 16(1) (“Men and women of full age,
without any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution.”).
214. HRC General Comment 28, supra note 182, at 184, para. 26.
215. Moreover, it is not sufficient that Tanzanians can write a will to avoid these discriminatory laws.
As the South African Constitutional Court explained, requiring Africans to make a will “if they wish to
extricate themselves” from a discriminatory intestate succession regime is inadequate since “[o]nly those
with sufficient resources, knowledge, education or opportunity to make an informed choice will be able
to benefit.” Bhe v. Khayelitsha, para. 66, 2004 (1) BCLR 1 (CC) (S. Afr.). Similarly, in striking down a
statute enabling the husband to unilaterally dispose of joint property unless the wife takes certain steps to
protect her interests, the Unites States Supreme Court held that “the absence of an insurmountable barrier