Communication: E.S. and S.C. v. the United Republic of Tanzania. Message No. 48/2013. The opinions were adopted by the Committee on March 2, 2015.
In 2013, the author of the communication was assisted in preparing a complaint. The complaint was subsequently communicated to the United Republic of Tanzania.
The authors of the communication claim that the application by the State party of customary inheritance law, codified in Decree No. 4 on Local customary law (Declaration), did not allow them to receive any property into administration and inheritance after the death of their husbands and thereby deprived them of the rights provided for in paragraphs (c) and (f) of art. 2, (a) Articles 5, (b) Articles 13, paragraphs 1 and 2 of Articles 15, sub-paragraphs (c) and (h) paragraphs 1 of Article 16 of the Convention in conjunction with the Committee's general recommendations No. 21 and 27 on equality in marriage and family relations, older women and the protection of their human rights, respectively (Section 3.1 of the Opinions).
The legal positions of the Committee. The Committee recalls that, in accordance with articles 2 (f) and 5 (a) of the Convention, States parties are obliged to take the necessary measures to amend or repeal not only laws and existing rules, but also customs and practices that discriminate against women, including cases where multiple legal systems exist in States parties, in which the application of personal status law to individuals varies depending on their identity factors, such as ethnicity or religion. In some participating States, there are multiple legal systems in which the application of personal status law to individuals varies depending on their identity factors, such as ethnicity or religion. Some, but not all, participating States also have civil codes, the rules of which can be applied only in certain circumstances or at the request of the parties. Nevertheless, in a number of participating States, the individual does not have the right to choose with regard to the application of personal status laws based on personal parameters. The Committee... Recalls that the responsibility of the participating States for fulfilling their obligations under article 2 arises as a result of actions or omissions emanating from all branches of Government, including the judiciary. The participating States are also obliged, in accordance with paragraph 1 of art. 16, take all necessary measures to eliminate discrimination against women in all matters related to marriage and family relations (See communication No. 47/2012 Gonzalez Carreno v. Spain, Opinions adopted on July 16, 2014, paragraph 9.7.). The Committee recalls its General Recommendation No. 29 on the economic consequences of marriage, family relations and their dissolution, based on the principles detailed in General Recommendation No. 21, and obliging States parties to eliminate discrimination against women when entering into marriage, being in marriage and at its dissolution in the event of divorce or death as provided for in Article 16 of the Convention. States parties are obliged to adopt inheritance laws in accordance with the law that comply with the principles of the Convention and ensure equal treatment of male and female heirs. In this regard, the Committee recalls that General Recommendation No. 29 emphasizes that States parties are obliged to ensure compliance with the prohibition on disinheriting a widow/widower <6> (paragraph 7.2 of the Opinions).
General recommendation No. 29, paragraph 6. See also paragraph 7, according to which "women's right to equality in the family is universally recognized" and which contains references to general comment No. 28 on equality between men and women (especially paragraphs 23-27), General Comment No. 19 on the protection of the family, the right the right to marriage and equality of spouses, as well as general comment No. 16 of the Committee on Economic, Social and Cultural Rights on equal access of men and women to the enjoyment of all economic, social and cultural rights (especially paragraph 27) and general comment No. 20 on non-discrimination in economic, social and cultural rights.
General recommendation No. 29, paragraph 53. See also General Recommendation No. 21, paragraphs 34 and 35. In particular, paragraph 35 states that "in many countries, laws and practices relating to inheritance and property relations lead to serious discrimination against women. As a result of such unequal treatment, a situation may arise in which women will receive a smaller share of their spouse's or father's property in the event of their death than that which widowers and sons would receive in a similar situation. In some cases, women are granted limited and regulated rights and receive only income from the use of the deceased's property. Often, the provisions on the inheritance rights of widows do not reflect the principles of equality in relation to the ownership of property acquired during marriage. Such provisions are contrary to the Convention and should be repealed."
General recommendation No. 29, paragraph 53. This paragraph also states that "alienation/appropriation of property" is a crime, and persons guilty of committing such crimes are subject to prosecution in accordance with the established procedure. See also paragraph 50, which states that "in some participating States, widows become victims of "alienation of property" and "appropriation of property" when relatives of her late husband, appealing to customs, take away from the widow and her children property acquired in marriage, including property that, according to customs, she does not belong. They take away the family home from the widow and appropriate all movable property, and then neglect their prescribed duties to support the widow and children. In some participating States, widows are relegated to the status of outcasts or are evicted to other communities."
Referring to General recommendation No. 21, the Committee emphasizes that the rights contained in subsection "h" of paragraph 1 of article 16 of the Convention echo the rights proclaimed in paragraph 2 of article 15 of the Convention, which obliges States parties to grant women equal rights in the management of property. In the Committee's view, a woman's right to own, manage, use and dispose of property is fundamental to the exercise of a woman's right to financial independence and may determine her ability to earn a living and provide adequate housing and nutrition for herself and her children, especially in the event of the death of her spouse <2> (paragraph 7.3 of the Opinions).
Many participating States, in accordance with common law, deny widows equal inheritance rights with widowers, as a result of which they find themselves in an economically vulnerable position after the death of their spouse.
The Committee recalls that, in accordance with article 13 of the Convention, States parties shall take all appropriate measures to eliminate discrimination against women in the fields of economic and social life, in particular with regard to their right to loans, real estate loans and other forms of financial credit (paragraph 7.4 of the Opinions).
The Committee recalls that the application of discriminatory customary law contributes to the strengthening of gender stereotypes and discriminatory attitudes towards women's roles and responsibilities and impedes the exercise of women's equal rights in the family and in society as a whole (paragraph 7.5 of the Opinion).
The Committee's assessment of the factual circumstances of the case. In the present case, the Committee notes that inheritance issues are regulated by several legal systems in the State party and, by virtue of their ethnicity, the authors of the communication are subjects of customary Sukuma law. The Committee notes that, despite the existence of provisions in the State party's Constitution guaranteeing equality and non-discrimination, the State party has not reviewed existing laws or adopted new ones aimed at eliminating existing discriminatory aspects of codified customary law in relation to widows. As a result, the authors of the communication, after the death of their spouses, were deprived of the rights to participate in the management of the spouses' property and to receive inheritance. The Committee considers that the State party's regulatory framework, which provides for different treatment for widows and widowers in terms of their access to, acquisition, management, disposal, use and alienation of property, is discriminatory and constitutes a violation of articles 2 (f) in combination with articles 5, 15 and 16 The Convention (paragraph 7.6 of the Opinions).
The Committee notes that, despite the recognition by the High Court in its decision of 8 September 2006 that the application of customary law provisions against the authors was discriminatory, the High Court refused to repeal the relevant provisions, arguing that it was impossible to change customary law by a court decision and such actions amounted to "discovery Pandora's box." The Committee notes the absence of a response to the authors' appeal from both the Attorney General and the Court of Appeal for four years, the rejection of the appeal by the Court of Appeal on the basis of procedural formalities for which the authors could not be held responsible, and the absence of any action on the part of the Registrar of the High Court to provide an amended version of the judicial solutions. The Committee is of the opinion that such shortcomings in the work of the judicial system constitute a denial of access to justice and, therefore, amount to the failure to provide the authors with effective remedies in violation of paragraph "c" of article 2 (paragraph 7.7 of the Opinions).
The Committee recalls that, according to General recommendation No. 28, States parties should ensure that the principle of equality between men and women and non-discrimination is enshrined in domestic legislation, giving it a dominant status and ensuring its legal sanction (para. 31). See also para. 33: "The courts should bring any inconsistency between national legislation, including national religious and customary law, and the obligations of a State party under the Convention to the attention of the relevant competent authorities, since domestic legislation in no way justifies the inability of States parties to comply with their international obligations."
With regard to article 13, the Committee takes note of the authors' claim that widows in the State party are constantly forced to depend on their male relatives and their children and therefore do not enjoy equal economic opportunities. The Committee also notes that the authors were evicted from their homes after the death of their husbands. As a result, Ms. E.S. had to return to her family, and Ms. S.C. had to rent a house without any financial support from the families of their deceased husbands... The Committee considers that the authors were left in an economically vulnerable situation, without property, without a home to live with their children and without any form of financial support. The Committee considers that this state of vulnerability and insecurity limited the economic independence of the authors and prevented them from enjoying equal economic opportunities, in violation of article 13 (paragraph 7.8 of the Opinions).
The Committee's conclusion. The Committee considers that the State party, disregarding legal restrictions on inheritance and property rights, has not provided the authors of the communication with equal rights in matters of inheritance and other economic protection or any adequate compensation, thereby failing to comply with its obligations under paragraphs (c) and (f) of art. 2, paragraph (a) 5, paragraph (b) of Article 13, paragraphs 1 and 2 of Article 15, sub-paragraphs (c) and (h) of paragraph 1 of Article 16 of the Convention (paragraph 7.9 of the Opinions).