Customary as defined under the interpretation of laws act, is the law which shows rights and

duties according to African communities by considering customs and traditions. 1 In other

word customary law, refers to the traditional common rule or practice that has become an
intrinsic part of the accepted and expected conduct in a community, profession, or trade and
is treated as a legal requirement.
In order for customary laws to be acknowledged as law, four conditions must be met that is
the native law must be part of a long-established history, it must be continuous and not
broken or interrupted from one generation to the next, it must be adhered to be respected and
observed and the native law system must possess the authority to impose sentence on an
individual who violates those native laws.
Tanzania recognize the application of customary laws under the Judicature and Application
of Laws Act where by section 9A allows application of customary laws in giving rights and
duties where by the section provides that customary shall be applicable to and courts shall
exercise jurisdiction accordance therewith in matters of civil nature provided a person is or
was a member of community which rules of customary apply
Marriage customary law
Basing on the above brief introduction, the following is a typical Kuria customary laws,
from the lake zone of Tanzania and how they become part and parcel of our family laws to
date.
In family laws under the Kuria customary laws, marriage by elopement is a valid marriage
recognized under their law. This was the position of the court in the case of john Kirakwe V
Iddi Siko.2 In this case the respondent's son and the appellant's daughter had lived together
for over two years as husband and wife raised the presumption of marriage which the
respondent failed to rebut. The court ruled the case in favor of the appellant.
The above ruling of the case, reflect the principle of presumption of marriage under section
160 of the Law of Marriage Act, 1971. According to this principle, where it is proved that a
man and woman have lived together for two years or more, in such circumstances as to have

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acquired the reputation of being husband and wife, there shall be a rebuttable presumption
that they were duly married.
Protection of personal property customary law
Because the source of recognition of customary law is reciprocity, and the rights of
individuals are likely to constitute the most important primary rules of conduct in such legal
systems. After all, voluntary recognition of laws and participation in their enforcement is
likely to arise only when substantial benefits from doing so can be internalized by each
individual. Punishment is frequently the threat that induces recognition of law imposed from
above, but incentives must be largely positive when customary law prevails. Individuals must
expect to gain as much or more than the costs they bear from voluntary involvement in the
legal system. Protection of personal property and individual rights is a very attractive benefit.
Inheritance customary law
Inheritance is in three degrees, whereas normally the first son from the first house is the heir
in the first degree, second degree heirs include all other sons and third degree heirs are
normally the daughters of the deceased.
Rules 27 and 28 provide that a widow has no share in her husband's estate if there are issues
of the union and the husband cannot inherit from his wife who dies intestate, unless the wife
left no children or any member of her own family.
Distribution of property among heirs in the second and third degree is effected according to
their ages. The older one gets more than the young ones. Males get bigger share than females
irrespective of their age.
Illegitimate children are excluded from inheriting their fathers estate, but they will inherit
from the estate of their mother who dies intestate. Furthermore illegitimate children will only
inherit if legitimized in the second degree if they are males and in the third degree if they are
females. However illegitimate children will also inherit where there is a will of the deceased
father.
Under the Local Customary Law Declaration Order, No.4(1963) males inherit movable and
immovable properties absolutely, but females inherit immovable property only for their use
during their life time. They cannot sell such immovable property unless there are no male
members in the family. However, the High Court of Tanzania in the case of BERNADO
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EPHRAHIM VS. HOLARIA PASTORY AND GERVAZI KAIZIREGE(PCC) Civil Appeal

No.70 of 1989 (unreported Mwalusanya J., declared this custom as being discriminatory and
unconstitutional. It is noted that the situation now obtained in urban areas is different because
of the existence of acquired property (leases).
Local Customary Law (Declaration) Order, 1963 (Law of Persons) GN.L79 of 1963 provide
that the widow is asked to choose whether she wishes to live as a wife with one of the
deceased husband's relatives. If she refuses the offer, no bride wealth is to be paid back and
she is free to return to her relatives.
Property customary law
Law of Marriage Act, 1971 grants women the same rights as men in acquiring, holding, and
disposing of property. Each spouse retains separate rights in their property absent an
agreement stipulating otherwise.
Article 24(1) provides that Every person is entitled to own property and Article 13(1)
provide All persons are equal before the law and are entitled, without any discrimination, to
protection and equality before the law whereas Article 13(5) Define discrimination to include
gender.
Land laws Recognize womens equal right to acquire, hold, use and deal with land.
Section 20(2) of the Village Land Act, 1999 provides that Customs, traditions and practices of
the community may not be applied if they deny women lawful access to ownership,
occupation or use of land. Any application of customs which deny women such lawful access
shall be void.
Therefore, customary laws in Tanzania form part of the legal system as it has shown in the
above explanation.

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References
The Law of Marriage Act 1971.
The Interpretation of Laws Act Cap 1 R.E 2002.
John Kirawe V Iddi Siko (1989) TLR 215.
www.lawteacher.com.

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