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UNIVERSITY OF DAR ES SALAAM

FACULTY OF LAW

LW 400 : LL.BDISSERTATION.

TOPIC : THE LEGAL STATUS OF CUSTOMARY


MARRIAGES IN TANZANIA

CANDIDATE : KISILWA, ZAHARANI

REG. NO. : 36391/T.2002

NAME OF
SUPERVISOR : MR. MSHANA, ES.

A DISSERTATION SUBMITTED IN PARTIAL


FULFILMENT OF THE REQUIREMENT FOR THE
AWARD OF THE DEGREE OF BACHELOR OF LAWS
(LL.B) OF THE UNIVERSITY OF DAR ES SALAAM FOR
THE YEAR 2005/2006.

i
ii
COPYRIGHT

No one is allowed to report, reproduce or transmit in any form or by any means,

electronically or mechanically, including photocopying, recording or by any information

storage and retrieval system in respect of this dissertation or part there of, without prior

permission from the author or the University of Dar es salaam.

Copyright © 2005

iii
DECLARATION

I, KISILWA, ZAHARANI, do hereby declare to the best of my knowledge that this work

whether in part or in full has never before been submitted in any University for any

award.

Researcher

……………………………… ……………………………

KISILWA, ZAHARANI DATE

I have read and approved this paper for examination

RESEARCH SUPERVISOR

……………………………….. ………………………………

MR. MSHANA, ES. DATE

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ACKNOWLEDGEMENT

I, the researcher, would like to express his heartfelt gratitude to Mr. Mshana, ES. Of the

Faculty of Law, University of Dar es salaam for his unrelenting supervising assistance

without which this work would hardly be a success.

I further wish to advance my thanks to Mr. W.M.J Shonga of the Court of Appeal of

Tanzania [C.A.T] for his invaluable support, and particularly for a fully granted

permission to use the Court Library for materials pertinent to this research.

I also feel indebted to the District Registrar for the High Court of Tanzania, Mwanza for

providing through his officials the details necessary for this research as well as provision

of various materials pertaining to the study. The same thanks should go to the District

Magistrate of Mwanza District Court for awarding me an opportunity to use the Primary

Court materials appropriate to this course.

My sincere gratitude should also go to Tanzania Women Lawyers Association (TAWLA)

who helped me to lay down the general idea and the framework for this study. Likewise,

for their according me all the developments of case number eleven under the table of

cases of this work. They had been handling the case then.

Special thanks should go to my beloved wife, Mwanaisha and son, Mohammed Kisilwa

JR. for bearing with me during this entire strenuous job. Sometimes the latter’s childish

disturbances had turned out to be the very justified cause for frequent recesses. To all

v
those mentioned and unmentioned the author owes great thanks since, being pressed for

space here, it is absolutely difficult to mention them all here. However, the researcher

withholds the sole responsibility for all the deficiencies in this work, both noticeable and

unnoticeable.

vi
ABBREVIATIONS

D.M COURT : District Magistrate Court.

G.N : Government notice

H.C : High Court.

“Ibid.” : “Ibidem” (in the same work)

J : Judge

JJ : Judges

LMA : Law of Marriage Act.

L.R.C : Law Reform Commission of Tanzania.

L.R.T : Law Report of Tanzania.

No : Number

Op cit. : Opere Citato (in the work cited)

Pg. : Page

PR. COURT : Primary Court

R.E. : Revised Edition

TAWLA : Tanzania women Lawyers Association.

T.L.R : Tanzania Law Report.

URTC : United Republic of Tanzania Constitution of 1977 as ammended

from time to time

vii
TABLE OF STATUTES

Adoption Act. Cap 335.

Civil Procedure Act, 1966 no. 49 of 1966.

Customary Law (Declaration) Order, GN. No. 436/1963.

Judicature and Application of Laws Act. Cap 358 (R.L)

Law of Marriage Act, 1971.

United Republic of Tanzania Constitution of 1977 as amended from time to time.

viii
TABLE OF CASES

Angelina Mutalemwa v. Benedict Mutalemwa [1978] L.R.T. no. 44

Elizabeth Gikene @ Elizabeth Gambaresi v. John Zakaria Gikene. Matrimonial cause no.

5 of 2004: (Pending in the High Court at Dar es salaam.)

Ex parte Leonard Reed Harrisson &Kwigema Samson Gabba T.L.R [1996] no.198

Geraldina Charles v. Dellow A. Charles. Matrimonial Civil Appeal no. 4 of 1985:

Hokka Mbofu v. Pastory Mwijage [1983] T.L.R no. 94

Hyde v. Hyde (1866) LRP 130 1 ALL ER. 362

John Kirakwe v. Idd Siko [1989] T.L.R no. 215 (unreported.)

Juma s/o Abdallah v. Maige s/o Makundusi. Mwanza PC Civil Appeal no.55 of 1985:

Kija Ngosha v. Elias Mpuya. Mwanza PC civil Appeal no. 74 of 1987

(unreported.)

Said Hamisi Ungaunga v. Rukia Leonard. DSM PC Civil Appeal no 85 of 1999:

(Unreported.)

Selemani Kabatange v. Pascal Alfonce. Musoma (PC) Civil Appeal no.143 of 1984:

(unreported.)

Zacharia Lugendo v. Shadrack Lumilangomba (1987) High Court of Tanzania Mwanza

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TABLE OF CONTENTS Page

Copyright…………………………………………………………….……………….……i

Declaration………………………………………………………………………………...ii

Acknowledgement………………………………………………………………………..iii

Abbreviations…………………………………………………………………………….. v

Table of Statutes…………………………...……………………………………….…….vi

Table of cases…………………………………………………………………………....vii

Table of contents………………………………………………………………………..viii

Dedication…………………………………………………………………………………x

CHAPTER ONE: GENERAL INTRODUCTION……………………………...……..1

1.1 Background of the problem……………………………….…………….………...…. 2

1.2 Statement of the problem………………………………….………………..………....3

1.3 Hypotheses………………………………………………….………………………...4

1.4 Objectives…………………………………………………….………………………4

1.5 Significance of the Study…………………………………….….………….….……...4

1.6 Research Methodology……………………………………….…………….…………5

1.7 The scope and outline of the study…………………………………………….……...6

1.8 Literature Review……………………………………………..….……..……………..7

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CHAPTER TWO: CUSTOMARY LAW MARRIAGES: CONCEPTUAL

FRAMEWORK, LAW AND PRACTICE……………………….……………………11

2.1The concept of Marriage…………...……………...………………………………….11

2.1.1 Customary marriages generally………………………………………...………….12

2.1.2 Types of customary marriages……………………………………………………..14

2.2 The nature of customary marriages………………..………………………..………..15

2.2.1 Bride price………………………………………………………………………….16

2.2.2 The issue of consent to marry……………………...………………………………18

2.2.3 The issue of registration of marriages under customary law…...………………….20

2.3 Colonial Tanganyika and customary marriages……………………………….……..23

2.4 Customary marriages and the time after independence to present…………………..25

CHAPTER THREE: FIELD FINDINGS…………………………………………….27

3.1 Summary of the findings…………………………………………………………… 27

3.2 Acceptability of customary marriages in other African countries: An overview……34

3.2.1 Namibia…………………………………………………………………………….34

3.2.2 South Africa………………………………………………………………………..35

CHAPTER FOUR: GENERAL CONCLUSION AND RECOMMENDATIONS...39

SELECTED BIBLIOGRAPHY

xi
DEDICATION

This work is dedicated to my cherished parents; father, Mohamed H.O Kisilwa and

mother Mariam Kisilwa who have always saturated my mind with the real meaning and

the purpose of education in human life.

xii
CHAPTER ONE: GENERAL INTRODUCTION

During the time when Tanganyika was under the British as a protectorate, there was the

dual court system, that is, there were local courts on the one hand and the government

courts on the other. Under the local courts the law applicable was the customary law

while the government courts applied legislation.

After independence in 1961 most customary laws, which related to marriage, were

codified under the Local Customary Law (Declaration) Order of 19631. The codification

did not change Christian or Islamic laws but slightly modified customary laws such that

the latter was applicable to the whole country except in urban areas where there was a

mixture of ethnic groups.

Further later after the enactment of the Law of Marriage Act in 1971(hereinafter referred

to as the LMA), all marriages that were validly conducted under the customary law prior

to such enactment continued to be so notwithstanding any provisions in the LMA2. The

problem came with the customary marriages that were conducted subsequent to the

passing of the LMA; their validity began to be determined against the provisions of this

statute3. And this has been the tendency of the courts to present as a result most of the

customary law marriages have not been recognized only for lack of conformity with the

LMA.

1
G.N 279 of 1963

1
1.1 BACKGROUND OF THE PROBLEM

A uniform law regulated by the LMA governs all matters of marriage in Tanzania. This

law adopts some aspects of customary laws although most of them do not find a room in

it. Tanzania as a secular state recognizes customary laws and its Constitution guarantees

for equal protection of the law4.

However, in Tanzania there is only partial application of these customary laws. There are

some aspects of customary laws that are not accepted by the general law. Only such laws

relating to personal issues that are applied and thus it follows from this observation that

although customary laws related to marriage are recognized by the legal system, they are

applied only subject to control and limitation by the general law5. While customary laws

are a source of customary marriages the prevailing source is the LMA.

Therefore in order that customary laws qualify to be applied in matters of marriage they

should not go beyond the rules and principles postulated by the LMA which in my view

contravenes the sanctity of the institution of customary marriages and poses a grave

danger to them when in some aspect the general laws do not provide stern procedures to

protect them in equal terms as they do to marriages contracted under other rites.

2
see section 165(1) LMA, 1971
3
John Kirakwe v. Idd Siko [1989] T.L.R no. 215
4
Article 13 of The United Republic of Tanzania Constitution of 1977.

2
1.2 STATEMENT OF THE PROBLEM

Application of customary laws related to marriage is subject to limitation by the LMA.

The LMA, however, does not make the registration of customary marriages a condition

necessary to their validity for it requires that they be registered only when the registration

official happens to be present at the ceremony6. This being the case a multitude of

customary marriages goes unregistered. The problem arises where the question of

existence of such marriages is at issue before a court of law. The situation is even more

grave when a party to such marriage (especially a man) decides to contract another

marriage under other rites where there is a guarantee of issuance of marriage certificate

during the ceremony, and leaves the wife of the first marriage vulnerable to injustice

owing to the lack of evidence as to the existence of such customary marriage.

Since the spirit of the LMA was to introduce important reforms in the status of women

and children as far as their economic and social interests are concerned7 this objective in

my opinion is not well achieved since the victims, mostly women, of such marriages

continue to suffer under the fetters of their consequences especially when they have

acquired joint property and have had children.

5
See section 11(4) of The Judicature And Application of Laws Act, (R.L 2002)
6
Section 43(5), LMA.
7
See generally, The Law Reform Commission of Tanzania, Report of the Law Reform Commission on
Law of Marriage Act (no. 5,1971) Dar es salaam, 1994

3
1.3 HYPOTHESES

The following hypotheses were thoroughly tested: That, the LMA failed to harmonize or

to integrate personal laws successfully, that due to this it has impaired the status of

customary marriages to an inferior position. And that, the lack of firm procedural law as

to registration of customary marriages accounts for the inferiority of the same in

comparison with the other types of marriages.

1.4 OBJECTIVE

This research proposal aims at examining the practical implications of the unregistered

customary marriages and how serious is the problem especially on the party of the

deserted family when there is a failure to prove the existence of customary marriage as

valid against a subsequent non customary marriage in which the running away partner is

a party to.

Another objective is to come up with a possible solution as to why there are a big number

of unregistered customary marriages and also to find out as to whether there is any

alternative way to arrest the situation.

1.5 SIGNIFICANCE OF THE RESEARCH

It is hoped that the research will be a remarkable contribution to African literature on

customary law marriages especially at this age when they are thought to be dying away

while they actually do exist in such a mushrooming number.

4
The research is also intended to stimulate customary law spouses to register their

marriages thus make them gain a full legal recognition and avoid possible consequences

that emanate from non-registration.

Of more importance is to raise a concerned voice for the weaker parties who are the

customary marriage wives whose husbands run away and get remarried somewhere,

denying their first marriages and leaving their wives with a big, inconceivable domestic

burden of taking care of the family under very difficult situations.

1.6 RESEARCH METHODOLOGY

This study involved two methods of researching, namely, library research and field

research. As for library research various library materials relating to the topic have

thoroughly been consulted. Library research has been important for highlighting the

theoretical principles on the law governing customary marriages in Tanzania. In this

regard, a thorough search has been made of the relevant books, journals, articles,

government reports, statutes, policies and a number of relevant decided cases (reported

and unreported).

The University of Dar es salaam main library and the Faculty of Law staff library have

been of significant use to collecting materials on this research.

5
As for field research, the chief concern was the successful collection of data relating to

the topic under consideration. This aim was met through interviews conducted with the

local people especially women whom in my opinion I believe are the most affected by the

consequences of the unregistered marriages. Also interviews were done with the court

clerks in the primary courts in Mwanza. However efforts to hold interviews with various

magistrates with in the city proved unsuccessful.

This has been one among the frequently faced problems during the process of doing the

research. However in the alternative I was afforded all the opportunity to fully access all

the materials relevant to my research that could be obtained with in the premises without

any delays or catches whatsoever.

1.7 THE SCOPE AND OUTLINE OF THE STUDY

The research is about the practical implications of the unregistered customary marriages

in Tanzania and the substantive context will be limited to that purpose only. The study

will be confined in Tanzania mainland, within the city of mwanza. This study revolves

around the legal acceptability of the customary marriages in Tanzania and whether they

have the same status as other types of marriages such as civil, Christian and Islamic

marriages.

Chapter One highlights the theoretical framework of the study and the general

background of the problem. The significance of the study, hypotheses, methodology used

6
in researching and the literature review are also found under this part. Chapter Two

makes an analysis of the general notion of the customary marriages and revisiting its

principles hence establish its position to the Tanzanian legal system. Chapter Three of

this study makes a presentation of the field findings in general and revisits the statement

of the problem and the hypothesis in the light of the mentioned findings. Chapter four is a

conclusion of the study and the recommendations.

1.8 LITERATURE REVIEW

Review of the literature reveals that there is not much literature done particularly on the

subject, that is, the legal status of customary marriages in Tanzania. The review has

uncovered the background of the gist of this research and what particularly has to be

accorded more attention.

The law has always recognized customary marriages although the extent as to such

recognition differs with time as such even before the enactment of the LMA there was a

massive codification of the customary laws related to marriages8.

The LMA9 recognizes all marriages, which were validly conducted and existed prior to

1971 when the Act came into force its two major objects being to integrate and

harmonize the various systems of personal laws that existed in Tanzania up to 1971 and

8
The Local Customary Law (Declaration) Order, G.N 279 of 1963.
9
See section 165 of LMA.

7
to introduce important reforms in the general status of women and children10. Slightly

different from this good purpose, these personal laws, customary laws inclusive do not

apply in regard to any matter provided in the LMA11.

Kaisi 12 emphasizes on the importance of registering customary marriages and points out

the impacts emanating from the failure to register. She submits having uncovered a

number of cases addressed to the office of the registrar general wishing to be paid

“married persons” allowances but they had no marriage certificates. There are also many

cases at the office of the Registrar General where many women complained being

abandoned by their husbands for other women; some of these were married under

customary law and had up to six children born in their union13.

The Constitution of the United Republic of Tanzania14 guarantees equal protection of the

law for all the citizens and Tanzania has an international law obligation to provide for

compulsory registration of all marriages15.

16
Rwezaura points out the distinction there is between customary marriages and other

marriages as such, the former takes the form of a process to be completed and not an

10
Report of the Law Reform Commission of Tanzania on LMA (as cited in note 7 above)
11
Section 11 of the Judicature And Application of Laws Act, Cap 358 (R.L 2002)
12
C.O. Kaisi, Women Under Presumption of Marriage: A Critical Analysis of the Law, Practice and Social
Implications of s. 160 of LMA, 1971, LLM Thesis, UDSM, 1994.
13
See Kaisi, ibid.
14
Article 13 of The United Republic of Tanzania Constitution of 1977 (as amended from time to time).
15
Article 16(2) of The Convention on The Elimination of All Forms of Discrimination Against Women.
16
Bart Rwezaura, ‘The Proposed Abolition of de facto unions in Tanzania’, in The journal of African Law,
volume 42, no. 2 of 1998.

8
event like the latter does. That for certain purposes customary laws recognize this

marriage even when it stays for a long time without being regularized where as this is

very infertile a condition for successful recognition under the law. Bubeshi, J. 17 refuses

to recognize a perfectly conducted marriage according to Sukuma customary laws for

purposes of adoption only on the ground of non-registration.

Also there are provided other situations such that a party who is married under civil or

Christian rites purports to end such union according to rules of customary law and

remarries under the same law subsequently18. The other situation of the like nature is

where a city dweller as is common to many, maintains two house holds; one with a

customary wife and the other with a statutory wife19. When there is a dispute as to who is

a valid wife between the two, the statutory wife may well defend the existence of her

marriage at the expense of her opponent since more often than not she will have a

marriage certificate. What marks a civil or Christian marriage from a customary marriage

in many parts of Tanzania is the participation of a registrar of marriage or the minister of

religion as the officiating authority20.

17
Exparte Leonard Reed Harrison & Kwigema Samson Gabbha.[1996] TLR no.198
18
ibid.
19
ibid.
20
ibid.

9
Mwalusanya, J21 doubts as to whether a woman who was married under customary law

shortly after her new husband had divorced his church wife customarily lives in a void

marriage in spite of the time and the children she has had in that union.

It follows therefore from the above context that, although unregistered customary

marriages are recognized, proving them legally can be time consuming and costly.

Moreover, since documentary evidence is lacking, it affords the offending parties an

opportunity to dispute the existence of these marriages.22

As it is evident from the above analysis of the literature, not one of them has dealt with

the subject and gone any further as to point out the grave impacts left behind, after there

is a failure to defend customary marriages, on the wife and the family generally.

21
Angelina Mutalemwa v.Benedict Mutalemwa [1978] LRT no. 44.
22
Bart Rwezaura, op cit.

10
CHAPTER TWO: CUSTOMARY LAW MARRIAGES: CONCEPTUAL

FRAMEWORK, LAW AND PRACTICE.

Under this chapter an attempt is made to layout the definitions of the key words that do

appear in this work. A considerable insight is made into the general concept of customary

marriage and its underlying principles derived from the influence of the general law over

it and practice in Tanzania.

2.1 The Concept of Marriage.

For a long time the common definition of a marriage that has been used is that which has

been in Hyde V. Hyde1, an English case in which marriage was defined as a voluntary

union for life of one man and one woman to the exclusion of all others. This definition,

which has its cradle in the Christian concept of marriage that regards all other types of

marriages uncivilised, hardly reflects the natural African context in which marriage is

more than a union of a man and a woman.

This can be designated by a good number of cases that reveal the colonial judges’

deliberate indifference towards accepting the African polygamous marriages as valid

before the law2. From these and other like cases the African marriages are criticised

mainly on two grounds: first, there is no consent of a woman in the marriage since the

woman, they claim, in an African marriage is never a free contracting agent. That it is the

1
(1866) LRP 130 1 ALL ER. 362
2
For this attitude by the colonial judges See R v. Amkeyo (1917) 7 EALR 14, also Manji v. R (1954) A.C
no.126

11
parents of the prospective spouses that do all the negotiations. Secondly, in the African

marriages there is no element of an intention to last for life.

This interpretation of the term marriage leaves a lot to be desired and it creates a strong

need to define it in more precise terms. This definition views marriage as an event and

not as a process as viewed by the African customary law3. Although there is no uniform

definition of marriage the mere mention of this word presupposes a union between a man

and a woman or women4 so as to do justice to African customary marriages5.

2.1.1 Customary marriages generally.

Customary marriages reflect early civilisation of human being in marital affairs for

marriage has always reflected the level of development of human societies. During the

period of primitive communalism no word marriage was ever known, for there was that

unrestricted sexual freedom prevailing within the tribes where by every woman belonged

to every man and vice versa. This was so due to the low level of development and lack of

surplus, which hindered man to own property on individual basis.

Development in productive forces endowed man with abundance in agricultural

production alongside expansion of knowledge. It was at this time that marriages began to

3
Kaisi C.O. Women Under Presumption of Marriage: A Critical Analysis of the Law, Practice and Social
Implications of S. 160 of the LMA, 1971, LLM Thesis, UDSM.
4
See section 9 of The LMA, 1971
5
The present tendency has been that non Africans do not appreciate any aspect of customary marriages and
the results arising there from such as great polygamy and great numbers of children.

12
be common. The type of marriage advent during this time was basically customary

marriage. The barbaric elements of association between one woman to every man

disappeared with its purpose and this new form of marriage came with new purposes such

as: to increase production, for creation of alliances and links by a society with another

ethnic group and clan since creation of these links during this time was essential having

regard of the fact that the societies were warsome. Also for reproduction for more family

members meant more labour.

More important and the most common feature of the customary marriages is that they

take the form of a process. They are so because they do not have an end or beginning.

The spousal relationship strengthens with time and the marriage gains definition with the

birth of children and bridewealth6. No effect could be occasioned by the death of a spouse

for there were a lot more arrangement s where by the relationship could continue.

Before the enactment of the LMA in Tanzania customary laws including those that relate

to marriage were codified in Customary Law (Declaration) Order, 1963. After the

enactment of the LMA the customary marriages are recognized by s.25 of the same.

However, in Tanzania there is only partial application of these customary laws.

There are some aspects of customary laws that are not accepted by the general law. Only

such laws relating to personal issues that are applied and thus it follows from this

13
observation that although customary laws related to marriage are recognized by the legal

system, they are applied only subject to control and limitation by the general law7. While

customary laws are a source of customary marriages the prevailing source is the LMA.

Therefore, in order that customary laws qualify to be applied in matters of marriage they

should not go beyond the rules and principles postulated by the LMA which in my view

contravenes the sanctity of the institution of customary marriages and poses a grave

danger to them when in some aspect the general laws do not provide stern procedures to

protect them in equal terms as they do to marriages contracted under other rites.

2.1.2 Types of customary marriages

Although monogamous marriages do exist the most common feature of most African

customary marriages is polygamy. This is due to the nature of African economic

activities, in most societies the economic activities were agriculture and livestock keeping

which needed much manpower. This was the only means available to produce more

power for these societies.

However, there were other forms of marriages that existed such as sororate marriages8 in

which two sisters were married to one man, common among the Luo in East Africa. The

justification for this was to be able to contain the unexpected events such as where one

6
South African Law Reform Commission, Harmonisation of Common Law and the Indigenous Law
(Customary Marriages), Project No. 90, Issue Paper 3, 1996, pg. 40-42
7
See section 11(4) of The Judicature And Application of Laws Act (R.L 2002)

14
sister did not reproduce children. Also, Levirate marriages existed9. This type of

marriage took place when a husband died without bearing a child thus the widow would

be remarried by one of the existing brothers so that they may preserve their lineage. The

last form of marriage that existed was ghost marriage, these happened when a man died

before attaining the marriage age. Under these circumstances One of the deceased’s

brothers married in his name and the children that came out of those marriages bore the

name of the deceased.

2.2 The nature of customary marriages.

A great majority of the Tanzanians, live in the countryside. This fact coincides with the

reality that most marriages are conducted in the countryside. Most of these marriages are

conducted according to customary rites of a particular area. In Tanzania there are about

one hundred and twenty tribes which, necessarily, implies that there are specific

customary practices for each tribe in respect of the mode of conduct of marriages.

Despite this multiplicity of the society and subsequently of the customary practices, there

are certain similarities, which are common to all social groups.

The first similarity is that marriage in these societies is a matter to be dealt with by the

families of both the prospective spouses. The second similarity is that, there is a

necessary requirement that the brideprice customarily has to be paid by the father of the

boy together with his kin. Prior to giving of this brideprice there is always a process of

8
Philips A. (ed), Survey of African Marriages and Family Life (1953) OUP, xi-xviii
9
ibid.generally.

15
negotiation with the family of the girl who participate fully in the marriage of their

daughter. And the third similarity is that all these activities take a lengthy period of time

in which both families try to look into any reasonable causes that may hamper the

marriage from taking place10.

2.2.1 Bride price.

In most African societies, bride price, which is referred to as the transfer of a property

from the family of the prospective husband to the family of the prospective wife, marks a

very important feature of a customary marriage. This transfer of the property was an

exchange for the productive and the reproductive capacity of the married girl that had to

be paid for; otherwise this potential could be used within the girl’s family11. Bride price

was also given to legitimise the marriage i.e. The husband could never have the right to

consortium, sex, children etc. these are the most frequently given reasons to justify bride

price. Although bride price has this significance, there are different views regarding it

from the colonialists. Some connoted that it was tantamount to wife purchase12 this

contention has been found of no legal foundation for the same woman is not treated like a

servant13. The Marxists find it as a mechanism that is used by seniors to preserve their

10
Rwezaura, B.A. Sheria ya Ndoa Tanzania, (1981)TUKI, pg. 18
11
Holleman and Evance Pritchard (1947) 6 African Studies, pg. 187 Also Mathewson (1959) 10 J Racial
Affairs pg.72
12
Chigwedere A. Lobola-The Pros and Cons (1982) Books for Africa, Harare. Also Dlamini C.R.M. A
Juridical Analysis and Critical Evaluation of Lobolo in a Changing Zulu Society (1983), Unpublished LLD
Thesis, University of Zululand at pg. 90-93 as cited by South African Law Reform Commission in the
Work cited at note 6 above.
13
Hunter M. Reaction to Conquest 2ed (1961) OUP, pg. 192

16
dominance over juniours14. There are also those who term it a ‘ woman’s charter of

liberty’ and that it benefits women by providing them a public measure of their worth15.

Contemporary legal practice owing to broad changes introduced into the African societies

from the consequences of capitalist development the significance of bride price has been

impaired. Money has replaced payment of the same by transfer of property16. The

changes in economic structure have occasioned a change in the function of bride price. It

is not uncommon to find that a family of a prospective wife requiring a great sum of

money with a view to compensating for such and such expenses they have incurred on

the girl17.

These tendencies have resulted in the rapid rise in the amount to be paid as bride price

and the general cost of conducting marriages that many young men and women who

would wish to marry find themselves unable to do so opt for informal relations18.

Probably the observation above was among the considerations why Rule 5 of the

Declaration of Customary law, (GN 279/63) declared bridewealth no longer necessary for

the validation of a customary marriage. This rule was made to be the official customary

law in most areas of Tanzania where customary law applied19. The LMA later

14
Terray E. Marxism and ‘Primitive’ Societies (1969) Modern Reader, New York at pg. 163.
15
Hunter and Chiyenze (1983) 1-2 Zimbabwe LR pg.241 as quoted in the South African Law Reform
Commission on Harmonisation of the indegineous Law.
16
Rwezaura B.A, Sheria Ya Ndoa Tanzania, (1981) TUKI pg.19 Also Lugg (1945) 4 African Studies at
pg.126
17
Rwezaura B.A. “The Proposed Abolition of de facto Unions in Tanzania: A Case of Sailing Against the
Social Current” (1998) 42 Journal of African Law pg. 192
18
Kaisi, op cit. pg.39
19
Rule 5 of G.N No. 279 of 1963

17
strengthened this position in that any customary marriage that complied with it was valid

and could not be affected for breach of customary rules relating bridewealth20.

The institution of bride wealth is completely shorn of its legal significance following the

amendment of Judicature and Application of Laws Ordinance, Cap 455 of 1961 (Now

Cap 358 under the revised Laws.), which gave a towering status to the LMA over all

customary marriages. In the social level, however its significance continues to be intact

and there are a lot of cases brought before the courts of law questioning the validity of

marriage without bridewealth.

2.2.2 The issue of consent to marriage.

In most societies parents decided their sons’ and daughters’ marriages on the basis of

good mutual relations that existed between the two families21. The prospective spouses

had no power to decide for their own marriage. Other factors that geared the

establishment of marriages were the boy’s and the girl’s ability to work hard in respective

capacities as young man and young girl. Always those who had good behaviour got

married first. Also the family that had no history of inherited diseases or other family

problems stood a good chance for marriage22. To top them all bravery also was a very

20
See section 41, LMA.
21
Mathews (1940) 13 Africa.
22
Burilo MD, Dowry And Its Effects Under Customary Marriage in Jita Tribe of Tanzania, (1999) LL.B
Dissertation, University of Dar es salaam at pg. 13

18
important determinant factor for successful entrance into marital affairs. All these credits

were known only to the elders and not to their children23.

Under very strict customary law, consent of the spouses was also not necessary for there

were other marriage arrangements which would require a girl to go to a husband to

replace her deceased sister or to stay together with her if the latter was barren, whether or

not she liked it. This was common in such societies, which favoured the sororate types of

polygyn24. However if a spouse had any doubts with the marriage, there were a number

of opportunities where by a girl could appeal to her uncles and subsequently to the village

elder to resist the marriage. While the boy, if he were determined, would go as far as to

commit what other writers call ‘mock abduction’25.

This practice in Tanzania is, though to a lesser extent, still existent among some tribes

example the Sukuma. They name it ‘chagulaga’ where by a girl would be chased by a

number of boys and he who caught her became her suitor. In this circumstance where by

the luckiest was the fastest, the consent of a girl was not very much relevant, for the

custom required her to accept him. This practice is also common under the Nyakyusa

customary law and it is known as ‘Ukunyaka’26 whose equivalent word in English is

‘elopement’. It should be noted that under almost all customary marriages in Tanzania

parental consent is the key factor for the conclusion of a particular marriage. This is the

23
See Rwezaura, note 10 above, pg. 7
24
Schapera I. A Handbook of Tswana Law and Custom 2ed (1955) OUP. Pg. 155
25
ibid pg.129
26
Myakyoma A. Validity of Nyakyusa Customary law (2003) LL.B Dissertation, University of Dar es
salaam, pg. 34

19
situation even after the enactment of the LMA in 1971. However the LMA deals with the

issue of consent to the effect that no marriage shall be contracted except with the free and

voluntary consent of each one of the parties thereto27. It further declares a marriage

which, has been celebrated without the voluntary and the free consent of the parties, a

nullity. 28

The LMA fixes the minimum age for males to marry at 18 years where by at this age

parental consent has been dispensed with. As for females a girl may be subject to parental

consent as long as she has not attained the age of 18 since the legal marriage age for girls

is 15 years. This suggests that the minimum age for females is 15 years following the

government’s initiative for compliance with the UN’s recommendations29 which were

intended to protect young girls from being alienated from school for the purposes of

marriage. 13% of people who engaged in informal unions is accounted for by the parental

objection to the proposed marriage30. The age of 15 which is minimum for marriage has

been criticised as being discriminatory of female members. It has also been argued that to

a girl of the age of 15, marriage is unhealthy and dangerous to her life as well as to her

issues31.

2.2.3 The issue of registration of marriages under customary law.

27
See section 16 LMA.
28
ibid. Section 38.
29
United Republic of Tanzania, The Government White Paper No. 1 of 1969: Proposals on Uniform Law of
Marriage, Dar es salaam, 1969. Pg.13 see also Rwezaura, note 17 above, at pg. 202
30
Kaisi, op cit. pg. 130
31
The Law Reform Commission of Tanzania, Report of The law reform Commission on Law of marriage
Act (No. 5 1971) Dar es salaam, 1994. Pg. 19-20

20
Customary Law marriages, like other forms of marriages in Tanzania, are recognized by

Law of Marriage Act, 1971. But since the registration requirements provided for under s.

43(4) and (5) do not provide for effective control and administration of customary law

marriages, despite the fact that this section makes it mandatory that, however celebrated,

marriages to be registered with the registrar of marriages. Non-registration of a marriage

is an offence under section 157 LMA and registration of a marriage raises a rebuttable

presumption that such a marriage is a valid one.

As far as registration of marriages is concerned, the mode of registration of customary

marriages is different from other types of marriages; it is a practice that makes it a bit

different from the latter mentioned marriages from a legal point of view. Section 43(4)

and (5) LMA, 71 stakes the duty of registering customary marriages on the presence of

registration official at the ceremony, i.e., it becomes mandatory only when such official is

present, if in any case he is absent then the duty is shifted by this section upon the

shoulders of the spouses who are required to register to the district registrar within thirty

days.

In an attempt to make section 43(4) and (5) of LMA viable, the government issued

Government Notice No. 106 of 1971 which provides for appointment of Division

Secretaries in every district to assume the function of the registration officer (see The

Report of the LRC of Tanzania, cited in note 7 of chapter one, I wish to represent here the

opinion of the same regarding this practice as follows:

21
“ It is the opinion of this Commission that these registration arrangements are

cumbersome. Research has revealed that most of customary law marriages are

celebrated at a village level where presence of a Division Secretary may not be possible,

for varied reasons; one the Division Secretary may not be living in the same village

where the marriage celebration is taking place, two, most of the time the parties

concerned do not give notice of their intention to marry in terms of section 18 of LMA.

Thus these marriages more often than not become secret affair, as far as the state

authorities are concerned”.

“It is also the opinion of this Commission that non-registration of customary law

marriages is the major cause of abuse of this institution. Research has revealed that most

of the problems that are blamed upon the institution of Customary Law Marriages are in

fact caused by ineffective control of the practice stemming from non-registration and

Poor administration of these marriages”.

The commission further finds out that despite the requirement by the law for registration

there have been declining number of registered customary marriages. While registration

of marriages celebrated according to other rites increases enormously there is diminished

registration for customary marriages even when the total number of registered marriages

was at its peak in 1983/84. Out of 35,036 marriages registered that year only 62

accounted for customary marriages registration. Other forms of marriages were Christian

22
marriages 14,447, Islamic marriages 17, 714 and Civil Marriages 2,78832. This tendency

could be observed even in the first year of operation of the LMA when out of a total of

23882 marriages registered that year only 219 accounted for customary marriages33.

These statistics do not, in any way, mean that customary marriages are no longer

contracted. The mostly asked question is why there has always been this discrepancy or a

mismatch between the conducted customary marriages and their subsequent registration.

This problem is more often than not being blamed on the cumbersomity of the

registration arrangements for customary marriages. The person with the mandate to

assist in procuring registration of these marriages i.e. the Division Secretary is too

alienated from areas where customary marriages are normally celebrated. This results to

non-registration of this kind of marriage, which in turn deprives the parties to them

benefits intended for spouses as derived from the provisions of the LMA.

2.3 Colonial Tanganyika and Customary Marriages.

Before the invasion of colonialists in Tanganyika, it was the customary laws only that

regulated all matters of marriage. As noted earlier these customary laws differed from

one tribe to another although there were also a number of features that were similar.

32
ibid. pg. 17
33
See the Law Reform Commission Report of Tanzania, note31 supra. Also Kaisi note 3 supra. Also
Rwezaura note 17supra.

23
These local laws went on to be applied even when the first colonialists i.e. the Germans

came to our country. The foreign laws they came with did not affect much our laws on

areas of marriage, divorce and inheritance matters. However up to the time when the

British came to our Tanganyika there was already confusion in matters of marriage for

example there was a multiplicity of laws such as Islamic laws, Christian laws, and Hindu

laws. Inter marriages occurred alongside many other things which necessitated the

colonial government to curb this situation34. This was the time when the state intervention

on the matters of marriage was necessary. A system of court was established which

comprised of high court and surbodinate courts in which case the latter were given

jurisdiction on all criminal and civil matters. For all the civil cases that involved natives,

the law applicable was customary law only to the extent that it was not repugnant to the

main law35. All matrimonial cases were dealt with by the local courts, which had no

jurisdiction to hear cases not involving natives or when one of the parties was not a native

or when all the parties were natives but were living in other types of marriages than

customary one.

The higher courts had jurisdiction to hear any cases no matter who were the parties to

such cases i.e. if they were natives or not or a mixture of natives and non natives. In the

higher courts the law applicable was both English and customary law. These courts had

jurisdiction to interpret and apply customary laws so long as they were not repugnant to

the main laws of the country as well as to the English wisdom36.

34
See Rwezaura B.A. Sheria Ya Ndoa Tanzania, (1981), TUKI. Pg. 3
35
Article 24 of The Tanganyika Order in Council, 1920
36
Rwezaura, op cit. pg.3

24
The colonial judges took the opportunity accorded them by the law to mock the

customary marriages. They weighed the validity of these marriages against the English

monogamous marriages and found that the former they not real marriages. The high

court, for instance, could not hide its doubts over various customs about marriage,

polygyn and divorce procedure. It was the difference that the customary marriages had

from the English marriages that deprived them of legal equity and flamed the English

courts’ hate against the customary marriages. This was the practice for all the time during

which the dual court system existed i.e. up to 1963 when this system of courts was

abolished for new arrangement37.

2.4 Customary Marriages after Independence.

Prior to 1971 when the LMA was enacted, there was a dangerous internal conflict of

Laws relating to marriage matters. A number of personal laws were already operating in

the country forinstance, Islamic Laws, Hindu Laws, Christian laws, Statutory Laws, and

Customary Laws. The conflict in most cases occurred on such matters of divorce,

succession, and contracts. The courts of Law faced a tough job determining jurisdiction,

the laws to be applicable and competence of these laws. During this time the law

applicable depended on the parties, if the parties were from different customary law

communities, customary law did not apply. Also it was difficult to determine which law

to apply in cases where the parties were a Muslim and Christian or a party subject to

Islamic/Christian against a party subject to customary laws.

25
Tanzania, in view of this situation, initiated a deliberate effort to ascertain all those

matters that brought about conflict by enacting the LMA, 1971(see s. 11 of the Act).

Whose most provisions were a result of the government taking an advantage of the Spry

Commission Report of 1968 from a neighbouring country of Kenya. Before the advent of

the LMA, as an initial stage done by the government was to codify all the customary laws

through Customary Laws Declaration Order, 1963.

The Spry Report was basically for Kenya where also the state of conflict of laws existed.

The report recommended a unified law of marriage. Unfortunately this report was

rejected in Kenya. This was just about time when, moved by its own desperate need for a

unified law of marriage, Tanzania in 1969 issued the white paper No. 1 of 1969 exposing

the need to have one unified law of marriage and subsequently accepted the Spry Report

which was an important step towards the enactment of the Law of marriage Act in 1971.

The effect of the LMA was that all matters of marriage began to be determined against

this statute which has occasioned some of the problems in most customary unions present

to day although most of its provisions were useful during its early stage of its enactment

and for some time afterwards as it is laid down afterwards in this study.

37
ibid. pg. 37

26
CHAPTER THREE: FIELD FINDINGS

This chapter makes an analysis of the findings of the study in the light of both statutory

law and case law. The hypotheses behind the problem that motivated the doing of this

research as stated in chapter one are examined in relation to these findings.

3.1 SUMMARY OF THE FINDINGS

The study has examined the legal status of customary marriages in line with the question

whether a perfectly conducted but an unregistered customary marriage does stand on

equal footing with the registered one. The question of validity of any marriage may arise

in various areas, sometimes in most unexpected circumstances. It can arise even out of

the courts of law in normal social and economic interactions. But when it has to happen

before the court, the study reveals that, it usually arises in very special situations.

This is usually when there are cases of petitions for divorce in which case no one can

succeed unless valid marriage has been proved. It is so also in matters of petition for an

order of separation and the related issues. The study also has found out that, so long as

there is no issue of validity of customary marriages arising, the High Court of Tanzania

has always viewed them as solemn and sacred institutions just like any other marriage

and that all the other observations do come from a different set of reasons other than bias

by the courts of law against these marriages so long as they are conducted perfectly1. By

perfectly conducted it refers to the complete compliance with the customary practice of a

1
Geraldina Charles v. Dellow A. Charles. Miscellaneous Civil Appeal no. 4 of 1985

27
particular society2 as well as with the modifications of the same by the LMA as regards

the mode of formation of customary marriage. This can be evidenced by the fact that in a

bulk of cases where proof of customary marriages has not been possible by way of a

certificate issued after registration, the court has sometimes on its own motion devised

alternative means of proving the same3.

This has been the role of the courts of law in protecting the general institution of

marriage. When validity of a customary marriage happens to be defeated by a court of

law then it is obvious that it is militated with impropriety in the eyes of the general law

and specifically the LMA. In this level the court does not intricate the mode of proving

these marriages or confine this mode only to introduction of marriage certificates before

the judge. Sometimes mere oral allegations from the wife have been accepted as proof of

the woman as a wife of some man. But this operates only if the husband fails to rebut the

contention, in this case marriage is considered as rightly proven4. But this can not be

invoked in all other circumstances in which proof of a marriage is required.

2 5
It was evident in Elizabeth Gikene @ Elizabeth Gambaresi v. John Zakaria Gikene. Matrimonial Cause
no. 5 of 2004 which is yet to be decided before the High court at Dar es salaam. The woman in this case has
at one time been defended by TAWLA but by the time I came about it she was no longer their client for
some reasons. The facts of this case are that, a man had married his first wife according to Ngoreme
customary law. Later on when he decided to marry another wife a dispute arose between him and the
former wife and it was brought before Hon. Oriyo (Mrs.) J where it was submitted that the rules of the
Ngoreme customs were not complied with. This is so because Wangoreme leave in Mara region and the
woman claims to have been married in Tabora region where one does not find the Wangoreme customs but
those of Nyamwezi. Although this case is not yet decided one can simply detect what would be the
outcome basing on the principles laid down in the past cases by the same court. There is no way the
petitioner could prove her marriage before the eyes of the law, never even if this marriage were registered.
3
John Kirakwe v. Idd Siko [1989] TLR no. 215. In this case the court had to presume a marriage between
parties in the face of the strong opposition from the husband of the existence of that marriage.
4
Selemani Kabatange v. Pascal Alfonce. Musoma (PC) Civil Appeal no. 143 of 1984: unreported

28
However the courts of law have never had mercy with any customary union that has not

complied with the LMA and more often than not has ruled them mere concubinage5.

There are a lot of cases to this effect. Under this circumstance even if the ‘marriage’ is

registered the registration has no effect.

Due to this the study has revealed that, despite the fact that the customary marriages are

still being conducted to date, many of these, especially those conducted in urban centres

are void as per s. 38(1)(c) of the LMA and also are not valid marriages at all vide s. 18.

The study has revealed the ultimate reason for this is the fact that a large section of

Tanzanians especially in the countryside have never heard about the LMA and hence the

way in which customary law is modified in one way or another. Most of them are of the

view that so long as a marriage has been conducted according to customs of a certain

community then it is automatically a right marriage even when that marriage is militated

with extra legal practices in the light of the LMA.

While customary law favours polygamy, the same may not be allowed by some other

rites, this polygamous nature of African marriages affords, some of religiously immoral

Christians and even those Muslims who on their marriage certificates committed

5
The reason is in rhythm with section 25(1)(d) as seen above, solely because the parties did not belong to
the same customary law community. And the customs in which they claimed to have conducted their
marriage are not found in the place that they so conducted it. In this situation application of these rules 93
and 94 of the Customary Law (Declaration Order) Rule 93 which authorises the property acquired during
concubinage association, if they decide to part company, be divided between the parties. And rule 94 lays
down the manner in which this property has to be divided. In Hoka Mbofu v. Pastory Mwijage [1983] TLR
no. 94. A man had lived with a woman for sixteen years in concubinage. Mushi J. invoked these rules to the
situation and subsequently ordered the properties be distributed between parties.

29
themselves only to one wife, to engage themselves with secret wives whom they purport

to have married customarily6. Multiple marriages and particularly these purported

customary marriages are void in the face of existing marriage and are the most obvious

causes of the questions of validity in courts of law.

The above-explained facts reveal a good number of areas in which a question of validity

of a marriage may arise. One where there is misunderstanding between two wives

married to one Husband. The other situation is where a husband dies and his estate has to

be distributed to the two families, each one of them believing to have more rights than the

other. The other area is where a husband hides the customary wife and uncovers her later

to the older wife not married customarily. The circumstances become worse for those

who decide for more than one marriage conducted through different rites for instance, a

man who was initially involved in a Christian marriage decides to marry another wife

customarily. When this happens, then the customary marriage is absolutely void in the

eyes of law. From the customary point of view, this problem is not seen and the marriage

remains just as valid and the children who are born in that marriage are the right children

of the father provided that he fulfilled all the requirements of that marriage.

6
In one instance a man divulged his secret customary wife to his Christian wife as he approached death.
This went together with directives that upon his death his estate be distributed indiscriminately to all the
children of the two families. However after he died the Christian wife never recognised the customary wife.
The unrecognised wife underwent excruciating pain in life together with her family of two innocent
children who needed school and every other needs. The woman has had to cater for all this by herself in
very desperate life situation. While this happens the deceased left behind a very rich estate out of which the
two families could be maintained for the rest of their lives. Before the law however the subsequent
customary wife is not valid per section 38(1) (c), for this fact see the decision by Munyera J. in Sabai
Chomete v. Daniel Kigocha, Mwanza (PC) Civil Appeal no.73 of 1985 and Kija Ngosha v. Elias Mpuya,
Mwanza PC Civil Appeal no. 74 of 1987: unreported.

30
Due to the fact that many Tanzanians are not aware of the existence of the Law of

marriage Act, these cases have been so many and the consequences to the side of the

innocent customary wife and her children have been absolutely unbearable. Registered or

unregistered, however hard the poor customary wives try to prove their marriages by

circumstantial evidence, it remains according to law that subsequent customary marriage

is not valid but void due to the fact that it has been conducted when there was already

another marriage existing as per s. 38(1)(c). The research shows that under this

contingency the customary wife has always had to bear the consequences. The father may

not have the right to the issues born of this ‘marriage’7. The consequences of unregistered

marriages do not only affect the immediate parties thereto, but also the society as a

whole. There is increased illegitimacy in the first place; always this is the major

contributor of the soaring numbers of street children. These illegitimate children are a

7
In the advent of this situation the law applicable is not LMA but exclusively customary law. Rule 181A
requires that the children be legalized by the act of their father marrying their mother or under rule 181B by
paying some amount of money to the father of the woman. This has to be done in the lifetime of the father
of the children. Once this is done the children become legitimate and they can inherit from their father’s
estate. For application of this rule see the decision of Munyera J. in Juma s/o Abdallah v. Maige s/o
Makundusi, Mwanza PC civil Appeal no. 55 of 1985: unreported. Rule 43 of GN 436 of 1963 provides that
in absence of a will, illegitimate children can not inherit from their father unless the administrator of the
estate decides to deal with them on humanitarian considerations. To this effect see the decision by Manento
J. in Said Hamisi Ungaunga v. Rukia Leonard. DSM (PC) Civil Appeal no. 85 of 1999: unreported. The
law is very hostile against children and in my attempt to find possible laws that may be of relief to these
children I consider the Adoption Act cap 335 (R L). It provides for procedures for adopting children. This
law too is not very friendly for them for it does not allow adoption of a child to a group of individuals or an
organisation See s. 4 (5) of the Act. But only to a married couple who have evidence of their marriage and
not otherwise See s. 3(2) of Cap 335 and its application in Ex-parte Leonard Reed Harrison and Kwigema
Samson Gabbha. TLR [1996] no. 198. In this case a couple: one an alien and another a Tanzanian who had
married customarily had not been allowed to adopt a child for their failure to prove their marriage. In view
of s. 25 (1)(d) there can hardly be a valid customary marriage between people who belong to different
communities. Thus these findings narrow down an opportunity for these innocent children to find enough
people who can legally come to their rescue.

31
burden to the society and the state all together. It also has consequences upon the

increased rates of HIV/AIDS infection in the country for these children lack any viable

opportunity of education on how this disease is transmitted as well as how it affects the

body of human beings letting alone the effects of early unprotected sex.

Another reason that the study has found out, which makes a customary marriage

impaired, is the requirement that the marriage should take place between the couples who

follow the same customary practices and who live in the same community. This is a high

courts interpretation of section 25(1)(d), that, in order that a customary marriage is

constituted right there should be two ingredients which are: first, the parties should

belong to the same customary law community and the marriage itself be conducted

according to customary law rites of that community8. Any thing beyond that is as good as

no marriage at all. It is worthwhile to note here that in Tanzania a large number of those

who opt for customary marriages, the study shows, just purport to live in such unions

with their customary wives but in fact they are not in valid marriages. For most of them

neither come from the same community nor follow the same customary rites although

they are all Tanzanians.

Having regard of the broad social economic changes that are occasioned by the effects of

globalisation all over the world, in a free country like Tanzania in which people are free

to move from one area of the country to another area, usually inter community marriages

8
See this interpretation in respect of s. 25 (1)(d) in cases cited in note 1 above under this chapter.

32
are usually very common and thus the danger of having purported customary marriages

that contravene section 25(1)(d) is obvious. A considerable section of those who married

customarily and who I was luck to interview shows that they were not from the same

communities but still they believed they lived in a valid marriage. It was common from

my interview to come across a Sukuma of Mwanza living customarily with a Jita, both of

whom from different regions. Or in some other instance a kurya and a Luo though hail

from the same region, they come from different communities and different customary

rites.

These kinds of marriages are common in every corner of Tanzania and they occupy a

considerable constitution in the overall customary marriages conducted over the years.

These marriages are absolutely valid within the respective customary communities and

between the parties but in no way before the law. This has been one of the factors that

have made proving customary marriages absolutely difficult before the law and with this

difficulty the husband and wife are suddenly turned concubines. Thus the line between

these customary marriages and de facto unions is absolutely negligible.

3.2 ACCEPTABILITY OF CUSTOMARY MARRIAGES IN OTHER AFRICAN

COUNTRIES: AN OVERVIEW.

Having seen the experience regarding treatment of customary marriages in Tanzania, it is

intended under this part to briefly highlight on the treatment of the same in a few other

African countries. This subtitle is important here putting into consideration the fact that

33
problems with customary marriages are ubiquitous all over Africa, the fact that justifies

the researcher’s initiative. However it is not intended here that all the African countries

that practice customary laws will be discussed here, only two countries are, as selected

representatives of all others, considered namely, Namibia and South Africa. Much of the

materials relevant to this part as well as all the relevant legal authorities cited here were

collected over the Internet.

3.2.1 NAMIBIA.

Namibia has comparatively gone far ahead in matters of marriage. Despite the fact that

since 1919 it declared the Roman-Dutch law as the common law of country9 it has striven

quite enough towards full acceptance of customary marriages through its constitution and

other laws. The constitution of the United Republic of Namibia was adopted on February

199010 and to present day, it has done a great deal with the view to reconciling the

provisions in it that relate to gender equality and others that relate to the validity of

customary law. Validity of customary law marriages is not determined against some

piece of legislation like the case is in Tanzania but against the Constitution itself, thus a

valid marriage is an undisputedly, in this country guaranteed, or rather a Constitutional

right. Some articles from the constitution regarding this aspect prove very useful to this
11
study, by way of illustration, article 4(3)(b) recognises customary marriages in the

9
PolitInfo US: Country Information on Namibia (Profile) available on line at:
http://us.politInfo.com/Information/Country Profiles/country profile 175.html
10
Visit http://www.grnnet.gov.na/Nam_Nutshell/constitution/const/const.htm visit also
http://www.oefre.unibe.ch/law/icl/wa00000_. Html
11
see it online at http://www.oefre.unibe.ch/law/icl/wa00000_. html

34
12
country. Article 66 of the same vouches for the validity of all customary laws that do

not conflict with the constitution. This means any law that does not accept customary

marriage is against the Constitution and thus null and void. In more explicit words it can

be said here that customary unions are more secure here than they are in Tanzania.

In view of the global struggle for women to gain an equal status with men before the law,

marital power that for a long time made the husband the head of the household has been

abolished to the effect that women married in community of property acquire equal
13
access to bank loans and ownership of property . This has improved the status of

women not only with regard to their marital relations but also generally in the social

dimensions.

3.2.2 SOUTH AFRICA.

South Africa is one of the African countries whose effort to uphold the status of

customary marriages generally can be applauded. Now all marriages contracted in

accordance with customary Law enjoy an intended extension of full legal recognition

through The Recognition of Customary Marriages Act (RCMA) 14. The act which, came

into operation in 15th November 2000 tries to make use of the constitutional guarantees to

protect women and children by identifying the rights and duties of spouses in any given

customary law union.

12
United Republic Namibia Constitution, note 10 supra..
13
See the Married Persons Equality Act no.1 of 1996,quoted in Womens’ Rights in African Customary
Law, a publication of womens’ Rights Project LRC (2001) Legal resource Centre, South Africa.
14
no. 120 of 1998

35
There are quite a good number of good features in the South African Law relating to

customary marriages that ought to be copied to other jurisdictions. For instance the issue

of registration of customary marriages is commendably provided for in the RCMA to the

effect that all marriages conducted prior to the time when the act came in force in 2000

have to be registered with in twelve months and those conducted there after have to be

registered within three months however the failure to register a marriage does not

invalidate the same, see s. 4(9) of RCMA15. Of interest is the fact that the Act empowers

the traditional leaders to fully prove as well as to register the customary marriages vide s.

11(1)(a) and (iii). As for the proof of customary marriages, there are two ways to prove

ones marriage: first, the certificate issued in terms of the RCMA and second, a spouse

can apply for an order of the court that the marriage be registered. This was held by a

South African court in Baadjies v. Matubela [2002](3) SA. 427 16.The RCMA has not left

the issue of multiple marriages in customary law unprovided for. It is the right but

remanded to specific provisions in the act. Husbands who wish to enter into other

customary marriages have to fulfil one condition which is, to approve a written

agreement intended to make a sound regulation of the marital property among all the

marriages they are engaged in. all wives who have interest in the matter have to be joined

in the proceedings s.7 (8) of RMCA.

15
the section reads, Failure to register a customary marriage does not affect the validity of that marriage.
16
as cited in Womens’ Rights in African Customary Law, a publication of womens’ Rights Project LRC
(2001) Legal resource Centre, South Africa.

36
The court pending the application sets to make thorough determination of the

circumstances to establish whether there is any necessity to grant such order for

polygamy. One of such circumstances, which are put into consideration, is if, for

example, in any case any spouse and her family will be affected by the new marriage.

The primary concern of the court here is to make sure that all wives enjoy an equitable

share of matrimonial assets as well as to see that not one family group is discriminated

against.

The role of the court here is therefore greater, if in any case there is a feeling that some

interests of any of the parties can not be properly safeguarded then the issue remains at

the discretionary powers of the court whether or not to grant the order s. 7(7) (b) of

RCMA.17

There is no doubt that South Africa’s is a decided improvement on many countries

situations on matters concerning customary marriages, Tanzania is no exception. As it

has been shown above, most of the situations in which the question of validity of any

marriage arises are occasioned by confusion in multiple marriages. That is where

husbands just decide to marry secretly without disclosing their intentions to their wives

for their consent or even making prior arrangement on how the matrimonial property is to

be managed between the families, which turns out to be victimising the latter group. The

17
Here the court may either allow further amendments to the terms of the contract; grant the order subject
to any condition it may deem just: or refuse the application if in its opinion the interests of any of the
parties involved would not be sufficiently safeguarded by means of the proposed contract.

37
law in South Africa affords no man an opportunity to so arbitrarily act. To be precise

secrecy on the part of husbands is done away with in cases where they need more wives;

the law requires openness. This is a commendable step forward for this country which

gives me the feeling that Tanzania ought to copy therefrom to remedy her weaknesses in

the general law of marriage regarding multiple marriages.

38
CHAPTER FOUR: GENERAL CONCLUSION AND RECOMMENDATIONS

No one can more simply determine under what circumstances will proof of a customary

marriage be required for there is no special area in which this can happen as it has been

observed in the foregoing chapters of this study. This proof may be required even under a

very unexpected circumstance, which generally suggests that registration of customary

marriage is even as essential as any marriage conducted under any rite. It is my sincere

submission here as of the first priority in this part of recommendations that, the

cumbersome registration procedure for customary marriages as envisaged in the LMA, be

made uncomplicated.

The law as regards registration must put into consideration the exact nature of the

societies in which customary marriages are conducted so that the factors that arrest easy

registration of these marriages are simply diagnosed and solutions are best offered. Some

of these impediments are the fact that the registration official might not be living within

the vicinity of occurrence of marriage in which case it follows that the same may not be

able to keep track of all the marriages that take place in his area.

Also it is my recommendation that, even if these division secretaries, as responsible as

they are for registration, happen to be present within the area of an event of marriage, the

matter of registering should not be staked to his discretion so to do or rather be left to

depend on his presence, for this brings about a sense of irresponsibility in so far as the

law affords him enough loop hole to escape this duty. Since the provision requires him to

register only when he happens to be at the event (see s. 43(4) of the LMA) and his being

39
present is not made compulsory in which case he may claim to have been involved in

some other social engagements relating to his other job.

It should be understood that not many Tanzanians who leave in the countryside,

particularly to say, have had any opportunity to go to school. This explains my

observation during the study that almost all those engaged in customary marriages as well

as other marriages did not know how to read and write except for a few. Due to this

illiteracy no one acknowledged awareness as to the mere existence of the LMA letting

alone the provisions embedded in it. It is at this juncture that I recommend a perfect

dissemination of information and imparting knowledge to all Tanzanians by the

respective shareholders such as the Ministry of Legal and Constitution Affairs. My belief

is that once this is met every individual will stand a good chance to realise his or her

rights in a marriage thus save the most important unit of a countries Labour force which

is a family.

The burden to register should not fall back upon the spouses following the failure of the

registration official to appear (as per s.43 (5) of LMA). Not many see the importance of

registering their marriages, as such no one in the union bothers with such registration as a

result most of them go unregistered and the consequences are greater for the society to

bear. Instead there should be an automatic registration as is the case with the other types

of marriages. To this effect, I wish to import here the recommendation by the South

African Law Reform Commission (refer to note 6 under chapter two) that ‘the traditional

authorities’ should be made registering officers and this is better than making this task a

40
sole duty of one person (division secretary) who naturally is prone to be affected by

various humanly problems as the case is in Tanzania. In this case if the division secretary

is sick for a long time and a given number of marriages are conducted over the same time

then all of these marriages most surely will not be registered in which case he (the

division secretary) is in no way to blame for sickness is most surely a compelling and

justifiable cause for not being present at the ceremony.

In line with this, and since the spirit of the Law of Marriage Act, 1971 is to treat all

marriages, however celebrated on a balanced footing; the registration of customary Law

Marriages should be effected as soon as they are celebrated. I am of a very strong opinion

that only after this is done that the customary marriages will have the same

Non-marginalised legal status as the rest of all other marriages.

I would also like to import the recommendations by the LRC of Tanzania (as cited in

note 7 under chapter one above) that: ‘ A Kadhi who officiates an Islamic form of

marriage is empowered to issue marriage certificate as soon as he has solemnised a

marriage wherever that marriage is celebrated. Likewise the Commission recommends

that a village/Branch Secretary (Katibu wa Kijiji au Tawi) should be given similar

powers in respect of customary law marriages. This official should replace Division

Secretary (Katibu Tarafa) in this function as Registrar of Customary law marriages.’

41
If for any circumstance registration of a marriage has proved difficult then other forms of

proving the same in case it is pertinent, must be allowed to the parties in an attempt to

acknowledge practical significance of these marriages and to avoid possible

consequences that may arise out of depriving the parties thereto to prove it otherwise.

Lastly, confining myself to the findings and the sole purpose of this study, most of the

provisions of the LMA are no longer useful and require a thorough reviewing and urgent

updating to the drift of the time and associated changes in the society. In the same

attitude, the whole of section 25 of the LMA or part thereof should be of first priority;

emphasis laid on subsection (1) paragraph (d). And this removal or addition should be to

the effect that marriage between parties from different customary law communities be

allowed to marry customarily, it should be made a rule that when the parties from

different customary communities decide to marry then they should decide which

customary law of one of the parties should be followed for the purpose of the same. And

the requirement of notice vide s. 18 of LMA be accorded more force and penalties be

imposed on those who do not give such notice for the study shows that under the current

practice no individual feels that he or she has that duty. This should be focussed, with due

emphasis, on priming the society to get used to this practice and find it as a part of

marriage process.

42
SELECTED BIBLIOGRAPHY

BOOKS

Armstrong A.K, Women and Law in Southern Africa, (1987) ZPH, Harare.

Bennet T.W, Human Rights and African Customary Law, (1995) Juda & Co. Cape Town.

Chigwedere A. Lobola- the Pros and Cons, (1982) Books for Africa, Harare.

Cory H. & Hartnoll M.M, Customary Law of Haya Tribe, Tanganyika Territory, (1945)

Frank Cass, London.

Cory H, Sukuma Law and Customs, (1953) Oxford University Press, London.

Fortes T. O, The Nature of African Customary Law, (1956) Manchester UP.

Gluckman M, Ideas and Procedures in African Customary Law, (1969) OUP.

Huber H, Marriage and the Family in Rural Bukwaya, (1973) Studia Ethnographica,

Friburgensia Fribourg.

Philips A, (ed) Survey of African Marriage and Family Life, (1953) OUP.

Roberts S, Law and The Family in Africa (1977) Mouton, The Hague.

Rwezaura B.A, Sheri a ya Ndoa Tanzania, (1981) TUKI, Dar es salaam.

Rwezaura B.A, Traditional Family Law and Change in Tanzania, A Study of Kuria

Social System, (1985) Nomos Verlag, Baden-Baden.

ARTICLES

Bart Rwezaura,’ The Proposed Abolition of De facto Unions in Tanzania’ Journal of

African Law (1998), volume 42, no.2 of 1998.

B.A. Rwezaura and U. Wanitzek, ‘The Law And Practice Relating to The Adoption of

Children in Tanzania’ Eastern Africa Law Review (1991) volume 18.


GOVERNMENT REPORTS

LOCAL

The Law Reform Commission of Tanzania, Report of the law reform commission on Law

of Marriage Act (No.5. 1971) Dar es salaam, 1994.

United Republic of Tanzania, The Government White Paper No. 1 of 1969: Proposals on

Uniform Law of Marriage, Dar es salaam, 1969.

FOREIGN

South African Law Reform Commission, Harmonization of the Common Law and the

Indigenous Law (Customary Marriages), Project No. 90, Issue Paper 3, 1996.

THESIS AND DISSERTATION

Burilo M.D, Dowry and its Effects under Customary Marriage in Jita Tribe of Tanzania

(1999) LL.B Dissertation, University of Dar es salaam.

Kaisi C.O. Women Under Presumption of Marriage: A Critical Analysis of the Law,

Practice and Social implications of S. 160 of the Law of Marriage Act, 1971, LLM

Thesis, University of Dar es salaam.

Myakyoma A. Validity of Nyakyusa Customary Law (2003) LL.B Dissertation,

University of Dar es salaam.

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