C UATRO REUNIONES CON J ULIETTE

I began this research project from the perspective of a practising lawyer with a belief that human rights could serve as a legal tool to challenge inequality and realise women’s interests in land. Postcolonial feminist critiques of human rights, notably Mohanty (1988) and Kapur (2002, 2006) however, caused me to reflect on some of the pitfalls of human rights-based scholarship and activism and its tendency to generate or reinforce a ‘victimisation rhetoric’ (Kapur 2002) about women. The ‘dark side’ of human rights - as Kapur describes it - continues to receive little attention in mainstream human rights scholarship and advocacy. Yet as Kapur argues, such scholarship and advocacy requires ‘understanding and learning from the postcolonial engagement with rights that are informed by the legacies of the colonial encounter’ (Kapur 2006: 685). These postcolonial critiques were a major factor in my decision to foreground the empirical and women’s experiences of making claims to land in my Tanzanian case study, rather than taking HRBA as the starting point.

In order to avoid the pitfalls of using HRBA, I turned instead to feminist methodological approaches. As Harding has observed, the distinctive power of ‘feminist-inspired’ research lies in the researcher using women’s experiences to generate her research questions, designing research for women, and placing herself in the same critical plane as the overt subject matter (Harding 1988). Yet, as Spivak warns, elite construction of the subaltern14 woman’s consciousness or subject brings its own ‘epistemic violence’. Welcoming ‘information retrieval in these silenced areas’, she nevertheless urges scholars to learn to ‘speak to (rather than listen to or speak for) the historically muted subject of the subaltern woman’ by ‘systematically “unlearn[ing]” female privilege’ (Spivak 1998: 295). In an interview with Shaikh, Spivak clarifies this

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The term ‘subaltern’, originating from the work of Antonio Gramsci and developed by the ‘Subaltern Studies’ group of intellectuals and Spivak herself, is used to describe an ‘effect’ rather than a defined category of subordinated social groups not forming part of a (colonial) elite (Landry and MacLean 1996: 203).

phrase as ‘learning to learn from below’, seeing one’s privilege as instrumental more than anything else. She warns however, that this is a formula that is ‘very easy to agree with and extremely difficult to practice’ (Shaikh 2007: 183).

Inspired and informed by these postcolonial and feminist scholars, I resolved to conduct a rich, detailed and empirically-based study of women’s claims within a broader socio- legal inquiry into the law in action. In the context of the new wave of African land law reforms, such empirical legal studies are particularly important for understanding the impact of statutory reforms on women’s interests in land, how women are engaging with new statutory fora for land dispute resolution, and how law is used and applied by courts in practice. Whilst a focus on disputes, which leaves out ‘trouble-less cases’ can give only a partial picture of how laws and other norms are understood and used within a society (Holleman 1973), context-specific studies of the law in action have intrinsic value for other reasons. Disputes amplify power relations between actors and a study of disputes reveals how power relations may be mediated by laws, norms and legal processes. Empirical research of disputes in statutory fora can provide important insights into the opportunities and obstacles that statutory law and legal processes offer women making claims to land beyond family and community-based fora.

Studying the law in action

Within the past thirty years very few detailed empirical studies by lawyers have been published on how African ‘customary justice systems’ and local African courts actually work in practice. Such studies include Rwezaura and Wanitzek (1988), Woodman (1988), Wanitzek (1990-91, 2002), Griffiths (1997), the WLSA series (1999-2000), Manji (2000) and Ubink (2008). Further ethnographic studies of legal processes by anthropologists include Comaroff and Roberts (1981), Moore’s historical ethnography of Chagga customary law on Kilimanjaro (1986), Rosen (1989, 1995), Caplan (1995), Hirsch (1998) and Stiles (2009). The latter four studies all focus on law in Islamic contexts.

There is considerable diversity of approach between the case studies by lawyers. Rwezaura and Wanitzek analyse the application by courts of a particular statute - Tanzania’s LMA - in a large volume of court cases across four different regions of the country. Woodman’s study examines how state courts ‘create’ customary norms in two

countries – Ghana and Nigeria. Griffiths and Ubink take ethnographic approaches to data collection. Ubink’s Ghanaian case study examines contemporary interpretations of customary law and the power of traditional authorities in both land management and dispute resolution. The WLSA series, Griffiths, Wanitzek and Manji all take women’s claims as their focus. WLSA’s research is activist-oriented and examines issues of access to justice and justice delivery in a range of local fora. Griffiths uses life history narratives to explore the gendered nature of women’s access to resources and family law in Botswana. Wanitzek (building on Hirsch’s socio-linguistic approach in her Kenyan study) analyses how legal language is used to express power and reinforce gender bias in the context of marital cases in Tanzania. Manji uses individual case studies from Kagera region, Tanzania to illuminate women’s experiences of struggles over land and to propose a theoretical framework for conceptualising the interaction of women and property.

My own study of women’s claims to land took a processual (Gulliver 1963, Collier 1975, Moore 1978, Comaroff and Roberts 1981) and multi-sited ethnographic approach to fieldwork in order to explore the dynamics of disputing and ‘the interlocking of multiple social-political sites and locations’ (Gupta and Ferguson 1997: 37). The research design applies Moore’s methodological concept of the ‘semi-autonomous social field’ – one which ‘can generate rules and customs and symbols internally, but ... is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded’ (Moore 1973: 720). The field of study was therefore not confined to the walls of the courtroom. Throughout my fieldwork I took a ‘grounded’ theoretical approach to my research questions and generated new ones in a continuous process of data collection, reflection and review (Glaser and Strauss 1967, Corbin and Strauss 1990, Bentzon, Hellum et al 1998). Appendix 1 of this thesis offers a detailed account of my most significant research design choices and the ethical and practical challenges that arose during fieldwork.

Field sites

The fieldwork for this study was conducted in Tanzania between January 2009 and January 2010, of which over nine months were spent in Arusha itself. The geographical context of the study is two districts within Arusha region - Arusha Municipality (now

Arusha City) and the peri-urban/rural agricultural district of Arumeru15 surrounding it. The 2002 census records these two districts as having the highest population density in the region.16 Data collection centred on legal dispute resolution fora within the two districts. The Land Acts established a five-tier system of land courts (Village Land Council – Ward Tribunal - District Land and Housing Tribunal (DLHT) – High Court Land Division - Court of Appeal) which now holds exclusive jurisdiction to determine land disputes.17 With the exception of the Court of Appeal, which is located in Dar es Salaam, all other levels of court operate within the two districts of this study.

Arusha region’s first DLHT opened in Arusha Municipality in January 2005. As at January 2010 there were two DLHTs - the second being based in Karatu - covering Arusha region’s six districts. Whilst ward tribunals had already been established under the Ward Tribunals Act of 1985 (WTA),18 in 2009 not every ward in Arusha Municipality and Arumeru had a functioning ward tribunal and some villages did not have village land councils. At the other end of the court hierarchy a shortage of High Court Land Division judges in Tanzania had resulted in a large backlog of appeals, meaning that very few judgments in land cases involving women claimants had been promulgated in the High Court or the Court of Appeal above it.

I considered it necessary to study disputes in more than one level of court in order to explore the progression, mediation and judging of claims as they become shaped and transformed by family, community and legal professional actors at various stages of dispute resolution. It was apparent from initial scoping research that the majority of legal claims involving women in the two districts were handled at the levels of Ward Tribunal and DLHT. Consequently the institutional focus of my fieldwork became (although was not limited to) these two levels of land court.

A substantial amount of archival and observational data was collected over a period of nine months at the DLHT in Arusha Municipality, as well as in five ward tribunals

15

In 2007 Arumeru District was administratively divided into two district councils – Arusha Rural and Meru. The two district councils continue to share a single District Commissioner.

16

The 2002 population census records the populations of Arusha Municipality and Arumeru as 281,608 and 514,651 respectively. The two districts cover just 0.3% and 8% respectively of the area within Arusha region but accommodate 21.9% and 40% of the population (National Bureau of Statistics 2004). The region’s other four districts - Karatu, Ngorongoro, Monduli and Longido are by contrast more sparsely populated and predominantly pastoralist areas.

17

LA s.167 and VLA s.60-62.

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covering urban, peri-urban and rural areas within the two districts. I spent an average of 2 months visiting each ward tribunal. In addition I observed legal aid clinic sessions at a local NGO – the Legal and Human Rights Centre (LHRC) and conducted semi- structured and unstructured interviews with a wide range of people – litigants their family members and elders, as well as legal, executive and political actors engaged in legal claims and land administration. I also kept a detailed ethnographic field diary. 1.5 Structure of the thesis

This thesis is structured to reflect the progression of women’s claims to land from their social origins through processes of dispute resolution to judgment. Chapter 2 locates women’s claims to land in their historical and social context. Drawing upon a range of fieldwork data it surveys the common themes and issues that arise in women’s legal claims to land in Arusha and introduces the locations and people whose claims are discussed in later chapters. Chapter 3 offers a technical overview of the statutory landscape for making legal claims to land provided in the Land Acts and LMA. The chapter considers the extent to which this framework is effectively designed to address the kinds of claims that are made by women in the location studied.

Chapters 4, 5 and 6 take a processual approach to studying the law in action. Chapter 4 examines the progression of women’s claims from their social origins through various dispute resolution fora. The analysis centres on agency, knowledge and power relations between actors as they negotiate and contest claims in these various fora. Chapter 5 focuses on adjudicators and their approach to doing justice and judging claims. This encompasses an analysis of procedural justice and how laws and other norms are interpreted and applied in practice. Chapter 6 draws together the themes of previous chapters in an extended case study which explores gendered subjectivity, law, power and discourse through textual analysis of a dispute. The chapter reflects upon how multiple actors engaged in the dispute shape, contest and ultimately transform the woman’s legal claim from home and village to High Court.

2. Social origins of women’s claims to land: