5 - ‘Shamba ni langu’ (The shamba is mine): A Case Study of Gender, Power and Law in Action

Summary

This chapter returns to the shamba on the slopes of Mount Meru where this book began, to develop further the major themes discussed in previous chapters through a single extended case study. The case is both typical and exceptional as an example of women's claims to land in Arusha. The substantive issue – that family land was sold by a husband without his wife's consent – is a common cause of land disputes between spouses in Arusha. The case is also exceptional as an example of a claim that was pursued from ward tribunal to High Court. Although relatively few claims by women villagers make it as far as the High Court, analysing the process of the dispute from family and community through the hierarchy of the courts offers important insight into the way in which women's claims to land are constructed, progressed, transformed, and adjudicated upon.

Chapter Three of this book explored issues of agency and power relations in legal disputing processes, whilst Chapter Four considered procedural and substantive aspects of doing justice through an analysis of a number of judgments. This chapter goes further, bringing together these issues with an analysis of how actors construct and pursue their legal claims through courtroom discourse. Taking a transcript of court proceedings as a primary data source, the analysis pays particular attention to gendered subjectivity and the role of customary practices in the construction and contestation of legal claims. The analysis is supported by further data collected on visits to the shamba in question as well as interviews with a number of actors involved in the dispute.

The analysis is particularly informed by the socio-linguistic approach to studying disputes adopted by Hirsch (1998) in her study of gendered discourses of disputing in Kenyan kadhi courts. Hirsch's socio-linguistic approach considers how power operates through discourse itself: ‘to constitute categories of persons, often using gendered terms, and how people positioned through local and global discourses enact and (sometimes) contest their construction as gendered subjects’ (Hirsch 1998: 18–19). This present case study reorientates Hirsch's socio-linguistic approach to consider how gendered subjectivity is used to substantively make legal claims to land and in turn constructs gendered power relations between those who lay claims to the land. It also considers how the construction of gendered relations to land through discourse impacts upon the adjudication of claims by tribunals.