Rights, the law and religion: Islamic courts in East Africa

After a lengthy process, Kenya’s draft constitution is finally out for discussion. A contentious issue during the Kenyan constitutional review process has been the question of Kadhi’s (Islamic) courts.[1] In anticipation to this development, Muslim leaders across Kenya met to discuss the question of the constitutional status of Kadhi courts in the Kenyan constitution. It is, however, not just in Kenya that the question of Kadhis court is being thrashed out. Increasingly, it is assuming a regional character.

In Tanzania too there has been a raging debate over the introduction of the Kadhi’s courts in the legal and judicial system. Like in Kenya, the most vocal and visible opposition against Kadhi’s courts assumes a religious character, with the church being at the forefront of those most hostile to its introduction. But the motion to reinstate Kadhi’s Courts in Tanzania was first introduced by an opposition leader, the Honourable Lyatonga Mrema of the Tanzania Labour Party (TLP), undoubtedly as a political strategy to win Muslim support in the 2005 General Elections. The ruling party is said to have appropriated the motion, turning it into a campaign pledge to make the same a reality in exchange for the Muslim vote. Not surprisingly, as the 2010 elections loom, the issue is gaining renewed vigour.

Religious forces have kept the matter very much alive in various spaces, including pulpits, newspapers and blogs, intensifying the pressure on the government to concede on the issue. Using a variety of advocacy channels, some Islamic bodies institutions have embarked on a media advocacy strategy aimed at consolidating Muslim opinion over the introduction of the Kadhi’s court. Dismissive remarks by the Prime Minister Mizengo Pinda during the 2009 budget session on the issue of the Kadhi elicited a harsh reaction from Muslim quarters. To appease the situation, the chief mufti, Sheikh Shaaban Simba, formed a committee to advise and negotiate with the government over the matter. In response, the prime minister also formed a committee to engage with the Muslim Council.

Concrete proposals to introduce Kadhi’s courts failed to come up during the recently concluded parliamentary session in November. In the meantime, the government has directed the Law Reform Commission to collect views and make recommendations on the matter. Women’s voices are noticeably absent from the discussions. From available reports, there is no female representation on this crucial body, advising on the most intimate aspect of family and social relationships.

This absence of women’s interest in the ongoing discussion is not only a physical absence but also an absence of gender considerations in the overall content of the proposals in substance. Largely, the voices of women have been sidelined or muffled by political forces informing the debate. Yet, it is they who stand to loose the most from what is being proposed. Indeed, the overwhelming interest in Kadhi’s courts does not seem to be a preoccupation of Muslim women, but of sections of the Muslim community who seek political advantage both from political parties and in the larger community. Otherwise, it consumes most those sections of the community who stand to benefit the most from the existence of Kadhi’s courts.

WHY KADHI’S COURTS?

The jurisdiction of the Kadhi’s court involves questions of Muslim law relating to personal status, marriage, divorce and inheritance of and between Muslims who in most cases are citizens of a free nation. Voices for the introduction of the Kadhis Court cite ready examples of countries who are already implementing the system e.g. Zanzibar, Kenya and Egypt among others. The majority of Muslims supporting the reinstatement of the courts do so because they believe it guarantees them a degree of autonomy over an aspect of their life in conformity with religious dictates. Few go on to actually analyse the workings of these courts. Moreover, few examine in detail the experiences of specific groups, like Muslim women or non-Muslim women, before such courts.

Legal anthropologists like Erin Stiles and Susan Hirsh give us a glimpse of the experiences of women in Islamic Courts in Zanzibar and Mombasa respectively, even though their work is limited to their particular research interest. Additional information can be obtained from legal aid bodies and the experiences of legal activists like myself, whose particular preoccupation is working on issues affecting Muslim women or women impacted by Islamic laws. Just as the government feels it is important to consult and listen to mostly male religious bodies, it should equally invest in the experiences of individuals and organisations who actually work on these issues, not just those who moralise about them.

IMPORTANT CONSIDERATIONS IN REINTRODUCING KADHIS COURTS

Without doubt reintroducing the Kadhi’s Court raises the possibility of denying a section of the community their constitutional, legal and human rights in the most fundamental area of human relations – the family. Moreover, religious courts will create classes of women – Muslim and non-Muslim; married and non-married – which will further discriminate among classes of women. This reality struck home about 20 years ago when I had just graduated from law school and was approached by two widows, former partners of a Muslim man named Marijala, after they were unceremoniously denied the right to inherit; or share in jointly acquired matrimonial property after the man they had cohabited with in a relationship that is defined as matrimonial died.

One of the women, though Muslim, could not inherit because the late husband was found to have only performed cultural rites in respect of their relationship. The other widow was a Christian, who the courts decided could not inherit from a Muslim, even if such a union is recognised under the law of marriage. Much as we tried to argue their case, the court dismissed their claims in deference to the opinions of Muslims sheikhs. I remember thinking then how odd this reasoning was. Indeed, how could a man, though Muslim, but who voluntarily and happily chose to live with these women, the mothers of his children, on terms agreeable to him and them, be suddenly converted by his relatives and court to become an impeccable and observing Muslim in death so that he would disown his consorts?

This may not have been the wish of the deceased but countless women meet this fate because under existing laws and prevalent interpretations of personal laws – whether religious, cultural or legislative in origin – women do not have equal status before the law, in flagrant contravention of national constitutions. Accordingly, the wife and daughter rarely benefit on an equal basis with their male peers in any type of matrimonial or family property settlement.

This was brought home to me this Ramadhan when a friend’s neighbour in Zanzibar died, leaving behind three daughters and no son, and a profitable hotel business. To our shock and horror their uncles began harassing the children and staff, claiming that the wealth – including the hotel business – belongs to them. Officials from the department in charge of inheritance issues confirmed that in the Shafi School, which is prevalent in East Africa, should a man be survived by daughters and no son, her paternal uncles undercut the daughters in inheritance shares, something that would not happen if they had a brother.

The uncles did not have any constructive plans for the business or the children. I tried to find out if the girls could settle with their uncle by paying them the share of the inheritance. I proposed that they could be paying an amount from the income of the business over a specific time since this would also guarantee their livelihood as well as that of staff working at the hotel. The officials were not interested in such settlements but rather saw it expedient to close the business and sell it, so as to pay each heir their inheritance share. This case has left me deeply troubled and stunned, and more so the premise of its rigid reasoning.

Certainly, on its face, the rules for distributing inheritance shares contravene the Zanzibar Constitution, which prohibits any discrimination on the basis of sex. Further, it restricts the application of the Shari’ah, if contrary to the constitution. In practice, however, government institutions go on to apply predetermined formulas for inheritance and other matters without due regards to the principles of equity and justice. In the above case, female children were discriminated against in inheritance entitlements, solely because they are women, while male children are favoured in the same because they are male. It is this open favouritism that prompted the uncles to be vindictive towards their deceased brother, who had no son to protect the women under his care! Of course, during his life-time, they could not dare approach him or his affairs.

Possibly, under traditional ‘fiqh’ (jurisprudence), the rationale for awarding the uncles a hefty share in the absence of a male heir was to offer the girls the protection from want, a male guardian was required to afford them. But what happens if the uncles have no intention of taking care of their nieces? Or what if the nieces are in a better position financially, or are older and their uncles still young, and the nieces are in fact the ones taking care of their uncles? Or as happened in the Zanzibar case, what happens if the families are estranged, such that the girls have never had a relationship with their uncles during their father’s lifetime and the circumstances of his death makes reconciliation impossible?

Death is but one instance where the status of women in precarious. Divorced women too suffer dispossession at the hands of their estranged husbands. In many cases, a husband can, through a pronouncement of talak, unilaterally end a relationship and many claim it as his prerogative. To date there is no effort to check this arbitrariness, as if women have no interest in the continued subsistence of the matrimonial relationship.

Efforts to address this injustice have stalled because it concerns women and their ability to acquire and control resources. Those who benefit from the arrangement cry ‘religious observance’ at the slightest hint of reforms, effectively putting the practice beyond reproach. God, in the Qu’ran, warns believers against ascribing injustice to the Almighty (Qu’ran 2: 224). If this is so how we need to ask under what leagal and religious basis can we continue denying women equitable shares of wealth, benefits and property jointly acquired during marriage?

Perhaps a more fundamental question with regards to the application of Islamic Law remains the active denial of women’s equal human status by the use of sacred text even though the Qu’ran is clear that man’s humanity is equal to woman’s humanity. It is not surprising that when reading translations to the Qu’ran, as well as its exegesis, the text is assumed to speak to men. Thus, men become the subject of the text and women the other. Accordingly, most authors, scholars and jurists explain the text with the male as the norm with all the prerogatives, and in so doing, a woman becomes but an object of the grand plan between God and Adam to the exclusion of Hawa (Eve) and other lower beings. It is, therefore, not a coincidence that the rights of women are viewed relative to those of men and not separate from men or on an equal basis with men.

UNPACKING DOMINANT DISCOURSES OVER THE SACRED

Conversely, the inevitability of Kadhi’s courts is couched in sacred terms where they are an obligation under God’s law, as they are the avenue through which the Shariah can be interpreted and applied. Generally, it has been hard to advocate for reforms of Islamic Law because of the perception that Shariah is divine and thus immutable. Numerous scholars in Islamic law criticise this position, arguing that it is hard to pinpoint what constitutes the body of law that is termed Islamic Law. Religious officials tended to describe Islamic Law in general terms and would include provisions from the Qu’ran, the Sunna, Ahadith, the Fiqh of different ‘madhhab’ and local interpretations and practices of matters deemed religious.

This concern with preserving their heritage, avers Dr S. Parves Manzoor, has limited the ability of Muslims to envision a universal moral order consonant with the themes of ‘khalifa’ (representatives) and ‘amana’ (trust), with dire consequences to Muslims. Since the 10th century Muslim jurists have confined themselves to the study and elaboration of the work of early jurists, not in its reformation to reflect subsequent human and social developments. As a result, notes Asma Barlas, much of the religious knowledge Muslims regard as canonical today is the product of a method that is described as linear, atomistic, and hermeneutically flawed. However, because of how religious knowledge and authority came to be structured in Muslim societies historically, most Muslims continue to regard these interpretations and this methodology as Islamic and obligatory.

In addition, the dichotomy between secular and Islamic law gives particular challenges to Muslims with regards to upholding citizenship rights where all citizens are presumed equal before the law. Scholars like Professor Abdullahi an Naim speak to this dilemma where Muslims try to assert their religious identity and to coexist within a wider social reality. In this respect, the distinction made by the late Sudanese scholar, Mahmoud Taha is helpful. He describes Shariah as the law prescribed by God to regulate all aspects of public and private life, but distinguishes this from the law which came to be known as Shariah, which was created through the interpretation of jurists of the fundamental sources of Islam mainly the Qu’ran and Sunnah during the eighth and ninth century AD. He argues that historical Shariah law as known to Muslims today was based on texts of the second stage of revelation, which was responding to the emerging and evolving needs of the Medina community at a particular point in time.

Rapaport too challenges the dominant assumption and shows how the early Islamic state intervened, albeit indirectly, in social and economic transactions. Equipped with greater manoeuvrability, jurists were able to introduce reforms in family law, such as supporting marriage stipulations in the marriage contract or maintenance awards upon divorce. Hence, the development of Islamic legal codes, mainly fiqh, is more akin to current notions of upholding the rule of law, so as to avoid arbitrariness on the part of judicial officers and in no way meant to seal the possibilities of novel legal reasoning.

The religious establishment in Tanzania further argues that the Kadhi’s courts are a historical legacy, having existed in Tanzania until 1965 before they were unilaterally abolished by the independence government. Thus, although not always vocalised, the search for religious and political legitimacy fuels the debate over the Kadhi. Therefore, calls for its reinstatement should be understood as a continuation of Muslim demands for restitution against perceived injustices they faced as a group under colonial and the independence governments, including the disbanding of key religious institutions and the persecution of key Muslim religious figures, especially during Nyerere’s leadership. A key aspect of this incursion is the loss of legitimacy among Muslim institutions, which Kadhi’s courts are somehow championed to restore.

BROADENING THE SCOPE OF THE ANALYSIS

But does in suffice to argue for a system solely on the basis of what it should be and not what it is or its established outcomes? Numerous scholars, jurists and activists advance core principles in Islam to advance outcomes that are more just, equal or equitable, compassionate and merciful. The concept of ‘maslaha’, for example, has been explored by a number of Islamic thinkers at different times to address changes in the political and social environment. ‘Maslaha’ refers to public good/interest, wellbeing and welfare. It serves as a vehicle for legal and social change in that it looks into the intent or purpose of the law (‘maqasid shariah’). There are different models of ‘maslaha’ developed by jurists at different times, some building on previous models, while others break new ground. Reformist jurists who invoked ‘maslaha’ presented Islamic law as a comprehensive legal system that is flexible and adaptable, not immutable.

In recent times, this concept has allowed the state to legislate rules to facilitate governance and to confer rights across groups. This concept was in operation in recent legislative changes in Muslim majority countries like Morocco, Turkey and Iran. In upholding the divine purpose much larger than mundane preoccupations, ‘maslaha’ shifts between the concepts of benefit and harm (‘mafsada’) to determine the outcome of actions or reforms. Two main approaches are discerned in achieving legal certainty – formal or substantive legal rationality where legal rationality depends on the application of strict legal procedural rules while substantive rationality is concerned with the ethical purpose of the law. Importantly, universally, the concept is used as a mobilising force to unify the ‘umma’ and improve its status.

Social and gender justice are core principles under the Tanzanian Constitution. Indeed, the government is accountable for the well being of its citizen (Art 8 (b) and (c) of the Constitution). The Tanzanian constitution is committed to eradicate all forms of oppression, threats, discrimination, corruption, injustice and favouritism. The government is obligated to provide equal opportunity to all citizens, irrespective of sex, ethnicity, religion or status. Accordingly, all policy initiatives must ensure that individual dignity and rights are valued and respected; and human rights are promoted in line with the Declaration of Human Rights and similar national, regional and international commitments.

But the legal framework in Tanzania, as is the case in most African countries, is yet to recognise the full personhood of the woman, emphasising the need to advocate for an egalitarian legal system based on citizenship rights. Across the board – in official, religious or judicial quarters – women’s rights are still very much confined to traditional notions about women’s position and entitlements. The revolutionary reading of gender ushered in by the Convention on the elimination of all forms of discrimination against women; the Vienna declaration on human rights; and the African charter on people’s and human rights on the rights of women are not yet a reality.

Patriarchal notions of male supremacy in the family is the basis of such disparities, the logic being that a woman will be taken care of by the men in her family. This outlook creates a perpetual class of dependants who are adults – sane, able and competent to administer their own affairs. Yet, it is a position that many want to uphold, arguing it constitutes a religious edict, not because of a sense of responsibility towards those ‘under their care’, but because they benefit from the status-quo. Indeed, there are countless examples that indicate that in practice, few women enjoy the protections that are arguably implied in men having bigger shares of inheritance. If the opposite was the case, then cases of maintenance and neglect would not top the charts of public institutions concerned with people’s welfare, religious or otherwise.

In Tanzania, as elsewhere, there exists a dominant discourse on Islam and women that leaves women, as well as sympathetic men, few avenues to demand for full citizenship rights even within religious paradigms that are progressive. Similarly, many women, human rights activists and interested observers have been silenced over matters involving the religious, for fear of offending religious sensibilities. Others feel they do not have the requisite arguments and expertise to challenge discrimination legalised on the basis of the religious or cultural. But is there no room in Islam to usher in change consonant with universal human rights ideals?

MAKING A CASE FOR REFORMING THE LEGAL AND RELIGIOUS FRAMEWORKS

As advocates for women’s rights, human rights and social justice we cannot afford to be disinterested in these discussions. Our primary interest is to ensure that the legal framework in Tanzania finally recognise the integrity and individuality of women as human beings and award them the protections that are due to every citizen. Nowhere is this more pressing than in the realm of personal relations. Also, it is to broaden the debate on rights and to introduce more progressive human rights and religious opinions to offer an array of possibilities under which women’s rights can be conceived at an individual level and within the family.

The intention is not to bash or discredit Islam as is the trend currently, but to encourage the development of a more progressive ‘fiqh’. In this regard, Mohammed Kamali posits that usul fiqh’s failure to encourage ‘ijithad’, demands that new and more pragmatic approaches should be explored. Influenced by Muhammad Rashid Rida, Kamali advocates for a methodology of harmonisation, which utilises the resources of ‘usul fiqh’ and the guidelines they offer for contemporary ‘ijithad’, whereby ideas of dignity of mankind (‘karama’), the right to live honourably, equality, justice and freedom of choice comprise basic rights of human being.

Certainly, religion does have special significance in the society but religious law does not operate in isolation. Social expectations of men and women today differ considerably from those of men and women over one thousand or one hundred years ago. Our context is of the 21st century, yet we justify applying ‘fiqh’ rules conceived in the 7th and 8th century, forgetting that such rules applied in a particular cultural and social context! As Muslims, how can we interpret legal rules so that they are more relevant to the present situation and also evidence the divine intention of upholding justice for women and men?

Moreover, instead of applying legal rules mechanically, the challenge is how to reflect the situation pertaining and not a preset outcome. Surely, the concept of justice should not just be relegated to the hereafter, as is commonly invoked to appease or silence women who contest blatant gender disparities, but it should be relevant to the present and actualised via universal, civil, legal, moral and ethical norms. For that reason, neither the state nor the courts should adopt a blanket assumption for an automatic application of religious and cultural law over personal law matters, as if women and men have no choice over the matter in life or in death.

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© Salma Maoulidi, November 2009
* Salma Maoulidi is a member of the Gender and Education Office of the International Council of Adult Education, member of Femnet a Pan African Women’s Advocacy Network and member of Sahiba Sisters Foundation, a community of women’s learners operating in 13 regions of Tanzania.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES
[1] I don’t believe that the question of religious courts pertain to Muslims alone since similar set ups, some official others less so, exist in other religious traditions. But I think that the dynamism inherent in Islam and its legal tradition makes such an investigation possible and necessary.

REFERENCES

Dr H.I. Majamba (2007) Possibility and Rationale of Establishing Kadhis Courts in Tanzania

Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Kumi na Sita, Kikao Cha
Thelathini, Tarehe 21 Julai, 2004

Bunge la Tanzania (2006) Majadiliano ya Bunge, Mkutano wa Nne, Kikao Cha Thelathini na
Moja, Tarehe 27 Julai 2006

Salma Maoulidi (2009) Between Law and Culture: Reconfiguring Rights for married Women in Zanzibar presented at the IRW Weekly Seminars ‘The Culture of Rights and the Rights of Culture’ Rutgers University

(2005) ‘Why bring personal laws into the public space: episodes from Tanzania’ WLUML Dossier 27, December 2005, pp. 1-8.

Asma Barlas (2003) ‘Islam, women and equality’ The Daily Times, Pakistan, May 6, 2003

Felicitas Opwis (2005) ‘Maslaha in Contemporary Islamic Legal Theory’, Islamic Law and Society Vol. 12 No. 2 Brill pp.182-223

Yossef Rapoport (2003) ‘Legal diversity in the age of Taqlid: the Four Chief Qadis under the Mamaluks’, Islamic Law and Society Vol 10, issue No. 2 pp. 210-228.

Mahmoud M. Taha (1987) The Second Message of Islam, Syracuse University Press

Dr. S. Parves Manzoor (1997) ‘State and Human Rights: A guide for the perplexed Muslim’ www.algonet.se/~manzoor/HR-Diyarbaakir.htm

Dr. S. Parves Manzoor, ‘Faith and Law: at the cross section of transcendence and temporality’,