[Home] [Help] [Databases] [CommonLII] [Feedback] | ||
Constitution of Kenya Review Commission |
By Ahmed Issack Hassan, Commissioner, CKRC
The Commission's Mandate
The Constitution of Kenya Review Act provides that the objects and purposes of the constitutional review is to secure provisions therein, inter alia respecting ethnic and regional diversity including the right of communities to organize and participate in cultural activities and the expression of their identities and establishing a democratic government that respects human rights - (Section 3(e) & (b). Further, under Section 5(b) of the Act, the organs of the review shall ensure that the review process accommodates the diversity of the Kenyan people including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disability and the disadvantaged. The Commission is also mandated to seek views on and make recommendation to the judiciary and the legal systems of Kenya.
Chapter 5 of the Constitution of Kenya guarantees the protection of the fundamental rights and freedoms of every person. Section 78 guarantees the freedom of thought, religion and conscience and Section 82 prohibits discrimination of any person on account of inter alia his or her religious beliefs.
The Current Status of the Kadhi's Courts, Chief Kadhi and Kadhis
The Kadhi's Court, Chief Kadhi and Kadhis are Constitutional offices established under Section 66 of the Constitution of Kenya. A Kadhi is strictly speaking a judicial officer, judge or magistrate presiding over an Islamic Court, called the Kadhi's Court, where Islamic law or Sharia is applied and subject to the jurisdiction of the Court all the parties who appear before the Court are those that profess the Muslim/ Islamic faith. A Kadhi is not necessarily a spiritual leader or imam.
Section 66 of the Constitution provides for the office of the Chief Kadhi and such number of other Kadhi's, not being less than three as may be prescribed by the Law. Sub-Section 3 of Section 66 provides for the establishment of subordinate Courts held by Kadhi's as parliament may prescribe. The jurisdiction of the Chief Kadhi and the other Kadhi's is to hold a Kadhi's Court having jurisdiction within the former Kenyan protectorate and shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.
The Chief Kadhi and Kadhis are appointed by the Judicial Service Commission (Section 69(3)(d).
The qualification for appointment to the office of a Kadhi (including a Chief Kadhi) under Section 66, sub-section 2 of the constitution is that one must profess the Muslim religion and possess such knowledge of the Muslim law applicable to any sect or sects of Muslims as is satisfactory to the judicial service commission.
The Wakf Commissioners Act, Chapter 109 of the Laws of Kenya, defines a Muslim to mean an Arab, a member of the twelve tribes, a Baluchi, a Somali, a Comoro islander, a Malagasy or a native of Africa of the Muslim faith. The Law of Succession Act, Chapter 160 of the Laws of Kenya, also defines a Muslim as any person who professes the religion of Islam and accepts the unity of God and Mohammed as his Prophet. In the same Section, Muslim law is defined as the law applicable to a person who is a Muslim.
Pursuant to the provisions of Section 66 of the constitution of Kenya and for the better carrying out of the functions of the Kadhis, parliament passed the following acts:
The Kadhi's Courts Act, Chapter 11 of the Laws of Kenya;
The Mohammedan Marriage and Divorce Registration Act, Chapter 155 of the
Laws of Kenya;
The Mohammedan Marriage, Divorce and Succession Act, Chapter 156 of the
Laws of Kenya.
Amendments to the Law of Succession Act, Chapter 160 of the Laws of
Kenya.
The following are the salient features of each of the aforesaid acts:
(a) Kadhi's Courts Act
Section 4(3) states that it is subordinate to the High Court. This
section conforms to the provisions of the constitution which give the High Court
original unlimited jurisdiction over all civil and criminal matters in Kenya and
section 65 which gives it power to supervise any civil or criminal proceedings
before any subordinate court.
Section 5 restates the jurisdiction of the Court as already provided for in
Section 66 of the Constitution.
Section 6 states that the law and rules of evidence to be applied in the
Court are those applicable under Muslim law. However, Section 6(iii)
provides that in the absence of the applicable Muslim law and rules of evidence,
then the law and rules of evidence applicable in the High Court shall be used,
i.e. the Evidence Act, Chapter 80 of the laws of Kenya. This is in inspite
of the fact that Section 2 of the same Evidence Act states that it shall apply
to all judicial proceedings in or before any Court other than a Kadhis
Court!
Section 8 provides that the Chief Justice may make rules of Court for the
procedure and practice to be followed by the Court but where no such rules are
made, then the procedure and practice to be followed shall be those of the
subordinate Courts i.e. the Civil Procedure Act, Chapter 21 of the Laws of
Kenya. It is to be noted that to date the Chief Justice has not made the
rules of Court for the Procedure and Practice to be followed by the Kadhi's
Court. They therefore use the Civil Procedure rules even though they are
not trained for it.
Under the Kadhi's Courts Act, Parliament has established twelve
Courts. The Kadhi's Courts Act passed in 1967 initially established 6
Kadhi's Courts, subordinate to the High Court, four having jurisdiction within
the area of the former protectorate, one in Nyanza, Western and parts of Rift
Valley Province and the last one having Jurisdiction over the former Northern
Frontier Districts of Garissa, Wajir and Mandera (Ghai & McAuslan). An
appeal from the Kadhi's Court can be lodged with the Chief Kadhi's Court or to
the High Court. The High Court will sit in appeal with the Chief Kadhi or
other Kadhi's as assessors. The opinion of the Kadhis as assessors is
however not binding on the judge in deciding the appeal, especially if he
disagrees with their opinion. An appeal also lies to the Court of Appeal
from the High Court and in that final Court, the Chief Kadhi or any other Kadhi
does not sit even as assessors.
(a) The Mohammedan Marriage and Divorce Registration Act
This is a procedural Act which provides for the registration of marriage
and divorce by Muslims, the appointment of registrars and their assistants and
the keeping of the register of marriage and divorce.
(b) The Mohammedan Marriage, Divorce and Succession Act
This Act deals with the law relating to divorce, matrimonial causes and
interstate succession. Section 2 defines matrimonial cause or suit to mean
any suit relating to the validity of an Islamic marriage or any suit claiming
any species of relief whether by divorce or otherwise. Section 3(1) states
that Islamic law will apply in all divorce cases involving Muslims.
Section 3(2) provides that the High Court and every judge shall have power to
hear and determine all matrimonial cases or suits arising out of Muslim
marriages at the instance of either party if resident in Kenya. In
exercising this power, the High Court or the judge is to give reliefs upon the
principles of Mohammedan law applicable to that marriage. Section 4
provides that the onus of proving an Islamic Law principle before the High Court
is on the Party alleging it.
(c) The Amendments to the Law of Succession Act
This Act provides for the universal application of one Law of Succession to
the estates of deceased persons in Kenya.
Amendment to Section 2 of the Act vide Legal Notice No. 21/90 exempted the
application of the Act to the estates of deceased Muslims and provided for the
devolution of such estates in accordance with Islamic law.
However Section 3(4) provides that the provisions of Part VII, relating to
the grant of letters of administration shall apply to Muslims too.
Section 48(2) declared that, 'for the avoidance of doubt it is hereby
declared that the Kadhi's Courts shall continue to have and exercise
jurisdiction in relation to the estate of a deceased Muslim for the
determination of questions relating to inheritance in accordance with Muslim law
and of any question arising under this Act in relation to such
estates.?
Section 50(2) stated that an appeal shall lie to the High Court from any
order of the Kadhis Court in respect of the estate of a deceased Muslim and with
prior leave thereof, in respect of any point of Muslim law, to the Court of
Appeal. Section 50A states that the Chief justice, may in consultation
with the Chief Kadhi, make rules of Court for the better carrying into effect
and for regulating the exercise of the jurisdiction conferred on the Kadhi's
Court by the Act. However, to date no such rules have been made thereby
disabling the Kadhi's Courts in exercising the powers granted under the
Act.
Why the Kadhi's Courts were given Special Status and Entrenched in the
Constitution
In order to understand the reason why the Kadhis Courts were given special
status and entrenched in the constitution, one must go back to the history of
the ten-mile coastal strip of Kenya and how it lost its protectorate status to
become part of Kenya at the time of independence. (Kenya Coastal strip - Report
by the Commissioner).
Muslim Courts were in existence along the East Coast of Africa before the
coming of the British colonialists in the latter part of the 19th century.
The Kenya coastal strip was then part of the territories controlled by the
Sultan of Zanzibar. The Chief Kadhi's Court had jurisdiction throughout
the Coastal Region and Kadhi's Court's had jurisdiction within a district
only. These Courts were Muslim religious Courts and applied Islamic Law
identical to that observed in the Courts of the Sultan of Zanzibar in all cases
affecting the personal status of Muslims (Ghai & McAuslan). By an
agreement made in 1887, the Sultan of Zanzibar granted concessions, subject to
an agreed consideration, regarding his territories to the British East Africa
Association (BEA) and later to the Imperial British East Africa
Company. In 1895, an agreement was signed between Great Britain and the
Sultan of Zanzibar which made the Kenya coastal strip a protectorate. The
administration of the mainland and islands was entrusted to the Imperial
Officers by the British Government. Moreover, the agreement was not to
affect the Sultan's Sovereignty in the territories. The British also
agreed to respect the existing Islamic judicial system. When the British
took over the administration of the coastal strip, they found an already
existing administrative and judicial system in place. Within the
administration, there was a special cadre of Arab administrative officers headed
by the liwalis for the coast and assisted by mudirs. These officers also
held subordinate Courts with jurisdiction in both civil and criminal
cases. The Kadhis were magistrates specializing in questions of Islamic
law in relation to inheritance, marriage, divorce and other personal
matters. When the colonial administrators took over the protectorate, they
to a large extent, retained the institutions of the Kadhis Courts and their
jurisdiction, with certain limitations as to the scope of the application of
Islamic law. e.g. removal of the exclusive jurisdiction of the Kadhi and
the giving of parallel jurisdiction to the High Court under the Mohammedan
Marriage, Divorce and Succession Ordinance of 1920.
The British Government administered the Protectorate and the Kenya Colony
as a two-in-one unit for administrative convenience. Before Kenya became
independent and at the beginning of the Lancaster House constitutional talks,
the British Government and the Sultan appointed a commissioner, James R.
Robertson in September 1961 'to report to the Sultan of Zanzibar and Her
Majesty's Government jointly on the changes which are considered to be advisable
in the 1895 Agreement relating to the coastal strip of Kenya as a result of the
course of constitutional development of East Africa.' He visited the
Kenya Colony, the coastal strip and Zanzibar to collect the views of all the
stakeholders. Views were divided as to whether the coastal strip should be
treated as a single entity with Kenya Colony, or whether it should be handed
back to the Sultan of Zanzibar or it be treated as an independent entity and
declared Independent.
In a report submitted to the British Government and the Sultan of Zanzibar
entitled 'The Kenya Coastal Strip ? Report by the Commissioner' Mr.
Robertson recommended that the coastal strip be incorporated into Kenya before
self government and independence subject to certain safeguards being given to
the coastal people which should be entrenched in the constitution. At page
29 of the report, the commissioner states as follows regarding Kadhi's
Courts:
'The Muslim religion is, however, not only a faith, it is a way of life
and one of the most cherished rights of a Muslim is the exercise of the Sharia
law in all his personal affairs. Cases arise concerning marriage, divorce,
alimony, trusts and inheritance which have their own method of settlement in the
Sharia law. At present the Muslims of the Coast have a number of judges
(Kadhi's) who adjudicate in such matters according to Muslim law. I would
strongly recommend that this system be continued. At present the Kadhis
who are really Arab or Muslim magistrates, are quite separate and distinct from
the judiciary. I consider that this is anomalous and that they should be
integrated within the judicial system proper under the Chief Justice's
administration. I recommend that a Chief Kadhi should be appointed
together with perhaps three Kadhis, one for Mombasa and its surroundings, one
for Malindi and Lamu, and one for Vanga and the south. Such officers
should be Muslims, although not necessarily Arabs, and they should have an
adequate degree of competence in Sharia law. I consider also that on their
being fully integrated in the Judicial Department, they should be liable for
posting to any area where Muslims reside and where cases are submitted for
consideration under Sharia law. I consider that the criterion that the
Kadhis should be Muslims will counter the suggestion on the part of the Africans
that the provision is discriminatory, while the same time providing the Arabs
and Swahili's and Muslim Indians with a reasonable safeguard in a matter in
which I consider they have a right.'
Robertson further recommended that the British Government abrogate the 1895
Agreement with the Sultan of Zanzibar and that another Agreement be made between
the Government of Kenya and the Sultan of Zanzibar whereby the Sultan of
Zanzibar will surrender his Sovereignty claims over the Coastal strip in
consideration of the Kenya Government undertaking to respect and safeguarding
inter alia the maintenance of the Sharia Law for Muslims and the retention of
the Kadhi's Courts. On the 5th October 1963, the said Agreement was
actually executed in the form of an exchange of letters between the Prime
Ministers of Kenya and Zanzibar Messrs Jomo Kenyatta and M. Shamte
respectively. The independence constitution, under the Chapter dealing
with the judiciary, then provided for the establishment of the Kadhi's Courts
and their powers.
Views Received/Concerns Raised
The following is a summary of the views given and concerns raised by
people, organizations, institutions and experts on the Kadhi's Courts, the Chief
Kadhi and Kadhis:-
That Muslims must be consulted in the appointment of the Chief Kadhi and
other Kadhis. They should either elect them or be members of the
appointing authority i.e. the Judicial Service Commission. That Muslim
organizations such as SUPKEM should be consulted.
There should be some minimum academic qualifications for the Chief Kadhi
and the Kadhis e.g. a degree in general and Islamic Law from a recognised
university.
That Kadhi's Court be empowered to effectively deal with their work in
terms of the setting up of a scheme of service, improvement of their terms of
service and conditions of employment e.g. salaries, staff, communication
facilities, etc.
That the Chief Kadhi be given the same status as a High Court Judge and the
Kadhis as a Chief Magistrate.
That the number of Kadhi's Courts be increased and they must be at every
Province and District.
That the Kadhi's Court should have a separate Appeal Court and no appeal
should lie to the High Court.
That Muslim Judges who are experts in Islamic Law be appointed to the High
Court to hear appeals from the Kadhi's Courts.
That Kadhis Courts be empowered to determine both the substantive and
Procedural Law on inheritance and succession for Muslims.
That Kadhis Courts be expressly empowered to deal with not only divorce in
Islamic marriages but also on issues arising out of such divorces e.g.
maintenance and custody of children, guardianship, adoption, division of
matrimonial properties after divorce and other matters incidental thereto and
connected therewith.
That since the Wakf Commissioners, appointed under the wakf commissioners
Act have failed to administer the wakf properties under their charge, to the
satisfaction of the dependants and beneficiaries, are not representative,
transparent and accountable, they should be abolished and instead their
functions be given to the Kadhis Courts in the respective districts where the
Commission operated. The application and operation of the Wakf
Commissioners Act be extended to cover the whole country and not just the Coast
Province as currently stipulated
That each Kadhi must have a female assistant to handle delicate cases
involving women.
The powers of the Kadhi's Courts be increased to include handling civil and
commercial cases involving Muslims.
That although the Kadhi's Courts have a constitutional mandate to apply
Islamic Law in their Courts, the practice has been that the mandate has not been
effectively administered due to the lack of an institutional legal framework by
legislation and other administrative measures.
That Kadhis' work should be restricted to judicial work and Muslims to
elect their own Islamic/spiritual leader (mufti) who will be their official
spokesman and an advisor to the government on issues affecting Muslims in
Kenya.
That Kadhis' and the Chief Kadhi should not be involved in matters related
to Idd celebrations and other non-judicial work.
That Kadhi's Courts should be re-named Islamic Sharia Courts and references
to Mohammedan Law should be changed to Islamic Law or Sharia.
Islamic law should be taught at the public universities and Muslim personal
law should be codified into legislation.
Muslims of the Shia Sect should also be appointed as Kadhis to cater for
the interest of the Shia Muslims.
Supremacy of Muslim personal law over all other laws for the Muslims in
matters of personal law be affirmed.
Analysis of the Current Status of the Kadhis Courts, the Chief Kadhi and
Kadhis
The office of the Chief Kadhi and other Kadhis, though created under S.66
of the Constitution, do not have any security of tenure. They are
appointed by the Judicial Service Commission - some on contract. There is
no Scheme of service in place for the Kadhis. They are appointed as Kadhi
and they retire as Kadhis.
The Judicial Service Commission appoints all the Kadhis who are to work
under the Chief Kadhi yet its membership does not include the Chief Kadhi or
even a Muslim representative. Furthermore, the Commission is to appoint a
Chief Kadhi or a Kadhi if, in its opinion, he is well learned in Islamic
Law. How is the Commission to know whether one is a scholar in Islamic law
if it has no Chief Kadhi or other Muslim representative to advise it so?
Muslim personal law on marriage, divorce, inheritance and succession is not
codified into legislation in Kenya. It is left to the Kadhi's in their
different courts to interpret the law as they understand it. There are no
reports of the Kadhi's Court's decisions - hence this has hampered the growth of
Islamic Law jurisprudence in Kenya.
Appeals from the Kadhi's Courts go to the High Court and although the High
Court is to apply Islamic Law in the appeal, there may be some practical
difficulties where the Judge hearing the appeal is not a Muslim and does not
understand Islamic Law. While sitting in appeal, the High Court is to be
assisted by a Kadhi as an assessor but his advice is not binding on the
Judge. This too is not desirable considering that the Kadhi is supposed to
be the expert in Islamic Law. If the matter goes to the Court of Appeal,
Kadhis don't sit even as assessors to the Court. If and when such cases go
to the High Court or Court of Appeal and a verdict is rendered, questions have
arisen as to the acceptability and legality of such decisions under Islamic law
since the decisions are made by non-Muslim judges. For example in the case
of divorce in Islamic marriages, a divorce certificate issued pursuant to the
decision of a non-Muslim judge is not valid under Islamic law.
Although the Kadhi's Court's Act states that Islamic Law and rules of
evidence shall be applied in the Court this does not happen in practice as the
said Islamic Law and rules of evidence have not been made by the Chief
Justice. Instead the Kadhis use the Law and rules of evidence as provided
for under the Evidence Act. Yet Section 2 of the Evidence Act clearly
states that it shall apply to all other Courts except the Kadhi's Courts.
There appears to be a conflict between section 6(iii) of the Kadhi's Courts Act
which permits the application of the law of evidence under the Evidence Act, and
section 2 of the same Evidence Act which excludes the Kadhi's courts from its
application. However, a look at the commencement date of the two Acts
shows that the Evidence Act came into force much earlier in 1963 while the
Kadhi's Courts Act was enacted in 1967. It then follows that section
6(iii) of the latter Act contradicts section 2 of the former. Moreover,
section 2 of the Evidence Act seems to obey and conform to the spirit of section
66 of the constitution that establishes the Kadhi's courts while section 6(iii)
appears to contradict the same section and ought to be declared null and void
under section 3 of the constitution for being inconsistent with section 66 of
the constitution.
Again, the Kadhi's Courts Act states that the Chief Justice shall make
rules of Practice and Procedure for the Court but to date this has not been
done. Instead, the Kadhis use the Procedure under the Civil Procedure
Act. This is provided for under section 8(2) of the Kadhi's Courts
Act. This provision, just like section 6(iii) discussed hereinabove,
appears to violate the spirit of section 66 of the constitution and in practice
the two sections have acquired the character of claw back or derogatory clauses
to the extent that they have been used in lieu of the Islamic law and rules of
evidence and the practice and procedure of the court as ideally envisaged under
sections 6(1) and 8(1) of the Kadhi's Courts Act.
Since the Kadhis are not trained lawyers who understand the Evidence Act
and the Civil Procedure Act, it is not desirable for them to use the Procedures
under this Act to administer their Courts. There is now an urgent need for
the Chief Justice to provide for the correct Islamic Law Procedures, Practice
and evidence for the Kadhi's Courts for them to effectively and competently
fulfill their mandate. In view of the failure by the Chief Justice to make
and provide for these rules for the Kadhis Courts it may be worthwhile to follow
the examples of other countries. There is therefore an inconsistency to
the extent that the Kadhi is in charge of the substantive Law but the Secular
Courts determine the Procedural Law. Although the amendment to the Act in
1990 vide legal Notice No. 21/90 vests in the Kadhi the power to exercise
jurisdiction over the estate of deceased Muslims, this power cannot be exercised
because the Chief Justice has not, in consultation with the Chief Kadhi under
Section 50A, provided for the rules to be applied. It is necessary
therefore to have the Kadhi deal with both the substantive and procedural
aspects of the Law on succession and inheritance. Moreover, it may be more
useful to have a separate Islamic Law of Succession Act to deal with all these
issues.
References to Islamic Law as Mohammedan Law in the constitution and in the
legislations is wrong in form and in substance. This is a Colonial
nametag which has been carried over. There is no Mohammedan Law in
Islam. Mohamed (p.b.u.h) was/is a Prophet of Islam and the Islamic Law
cannot be named after him. Just as the Islamic religion cannot be called
Mohammedan religion, Islamic Law cannot be called Mohammedan law and Muslims
cannot be called Mohammedans.
The Chief Kadhi and other Kadhis have often assumed non-judicial roles such
as leading prayers in mosques, giving sermons therein and for the Chief Kadhi,
he has been holding himself out as the spiritual leader of the Muslims and their
spokesperson when he has not been elected or appointed as such. It is
common knowledge that a lot of controversy arises among the Muslims during the
month of Ramadhan when the Chief Kadhi purports to issue edicts directing when
the moon was sighted and when the Idd will be. It would have been more
practical for this role to be left to an elected Islamic leader of the Muslims
or a mufti who should be an advisor to the government on Islamic affairs.
The Kadhi's Court's have become, for the Muslims, a symbol of their Islamic
faith and culture but more importantly for the Muslim women, the Courts have
become an important site for resisting the oppression experienced in marriage
and in their domestic circumstances in a traditionally patriarchal and male
dominated society. Through these Courts, Muslim women have succeeded in
fighting for the protection and enforcement of their rights as guaranteed under
Islamic law and to challenge negative cultural practices and customs of Muslim
communities that tend to undermine these rights (Susan F. Hirsh).
Islamic Law does not permit women to hold the office of a Kadhi but this
does not prevent them from being appointed as assistants to the Kadhi to help in
those instances where women litigants in the Court find it difficult to explain
to the male Kadhi the delicate and intimate details of some of their domestic
problems.
Muslims are mainly of two sects in Kenya - the Sunni and Shia.
Majority of the Muslims in Kenya are Sunni Muslims but there is a significant
population of Shia Muslims too and consideration ought to be given to the
appointment of Kadhis of the Shia Sect to cater the interest of the Shia
Muslims.
Under Section 66 of the constitution as read with the provisions of the
legislations passed pursuant to that Section, Islamic Law is clearly recognised
as a source of the Laws of Kenya in as far as matters pertaining to marriage,
divorce and inheritance for the Muslims is concerned. The Kadhi's Court's
and the High Court must apply the Muslim Personal Law in dealing with Muslim
personal matters. However, Section 3 of the Judicature Act, Chapter 8,
Laws of Kenya which lists the sources of the Laws of Kenya and provides for the
Jurisdiction of the various Courts in Kenya, does not include Muslim personal
law as one of the sources of the Laws of Kenya subject to limitation as to the
scope of application. The result has been that Institutions of higher
learning in Kenya that teach law to students do not include Islamic Law in their
curriculum or courses. Consequently, when lawyers get admitted to the bar
in Kenya as advocates with the right of audience before all Courts, they find it
difficult to effectively represent clients in the Kadhi's Court's especially if
they are not Muslims and have not studied Islamic Law. It is therefore
necessary to recognize Islamic Law as one of the sources of the law in Kenya and
for the same to be taught at universities and in the Kenya School of Law.
Comparative Experiences
Several countries in Africa, Asia and the Middle East provide for the
establishment of the Kadhis Courts in their constitutions. Save for those
countries that have established Islamic states which apply Islamic Law
throughout the country, other states tend to limit the jurisdiction of these
Courts to matters affecting the personal status of the Muslims. In some
cases, the jurisdiction is exclusive to the Kadhis Courts while in others the
Courts are established as subordinate Courts to the Secular High Courts.
The Kadhis Courts are also called Qadhis Courts (Uganda), Cadi Court (Gambia),
Sharia Court (Nigeria), Shariat Court (Pakistan) and Religious Court
(Jordan). The following is a brief analysis of the position of the Kadhis
Courts or their equivalent in some countries:-
Nigeria
The Nigerian constitution provides for the establishment of the Kadi and
Sharia Courts in the states and in the Federation. The Sharia Court of
Appeal is to compose of the Grand Kadi and such number of Kadis as may be
prescribed by Law. The jurisdiction of the Sharia Courts is listed under
Sections 262 and 277 as being to decide on:-
any question of Islamic personal law regarding a marriage concluded under
that law, including the issue of validity or dissolution;
any question of Islamic personal law regarding a wakf, gift, will or
succession where endower, donor, testator or deceased person is a Muslim;
any question of Islamic personal law regarding an infant, prodigal or
person of unsound mind who is Muslim or the maintenance or guardianship of a
Muslim who is physically or mentally infirm;
any other matter where the Court of first instance decided the matter
according to Islamic Personal Law.
The qualification for appointment to the office of Grand Kadi or Kadi of
the Sharia Court of Appeal is set out by Sections 261 and 266. Under these
Sections, a person shall not qualify to hold the office of Kadi or Grand Kadi
unless:-
He is a legal practitioner in Nigeria and has been so qualified for a
period of not less than ten years and has obtained a recognized qualification in
Islamic Law from an Institution acceptable to the National Judicial Council; or
He has attended and has obtained a recognized qualification in Islamic Law from
an Institution approved by the National Judicial Council and has held the
qualification for a period of not less than ten years; and he either has
considerable experience in the practice of Islamic Law, or
he is a distinguished scholar of Islamic Law.
Sections 264 and 279 give the Grand Kadi, who is the equivalent to the
Chief Kadhi in Kenya, the Power to make rules for regulating the Practice and
Procedure of the Sharia Court.
Gambia
The Gambian Constitution under Section 137, establishes the Cadi Court to
be constituted by the Cadi and two other Scholars qualified to be a Cadi or
Ulama. Appeals from this Court goes to a review Court composed of the Cadi
and four ulamas(Islamic Scholars).
The Cadi Court has Jurisdiction to apply Islamic Sharia in matters of
marriage, divorce and inheritance where the Parties before the Court are
Muslims.
The qualification for appointment to the position of Cadi requires a person
of high moral standing and professional qualification in Sharia Law.
Uganda
The Ugandan Constitution establishes the Qadhis Courts under Section 129 as
one of the subordinate Courts of judicature exercising judicial power in Uganda
to deal with matters of marriage, divorce, inheritance of property and
guardianship. The details of the Court's structure and the exercise of the
jurisdiction thereof is left to Parliament to determine.
Jordan
Section 104 of the Constitution of Jordan establishes the Sharia Courts as
one of the religious Courts under that Section.
The jurisdiction of the Sharia Courts are over Muslim Personal Law
(marriage, divorce, inheritance and succession) and cases concerning blood money
(diyeh) where the parties are Muslims or consent to the jurisdiction of the
Court.
Pakistan
Section 203c of the Constitution of Pakistan sets up the Federal Shariat
Court which shall consist of 8 Muslim Judges including the Chief Justice
appointed by the President. Out of these 8 Judges, 3 of them must be
ulemas (scholars) who are well versed in Islamic Law while the other 4 will be
persons qualified to be appointed as Judges.
The Federal Shariat Court has the power and jurisdiction to ensure that all
laws enacted in Pakistan and all decisions of the Courts in Pakistan conforms to
the Principles of Islamic Law and in particular that they do not contradict the
Provisions of the Holy Quran and the Sunnah (teachings and practice) of the
Prophet Mohammed (p.b.u.h). If any of these Laws and decisions contradicts
the Provisions of the Holy Quran and the Sunnah of the Prophet, then the same
are declared null and void to the extent of the inconsistency. This in
effect confirms the supremacy of Islamic Sharia over all other Laws in
Pakistan.
The Sharia Court is empowered, under Section 203J of the Constitution, to
make rules of Court to enable it exercise its powers and
jurisdiction.
|
Tentative Recommendations
1. The Kadhi's Court's be retained in the manner and form as proposed
hereunder.
2. The Number of Kadhi's Courts be increased to not less than 30 to
be located at the districts where Muslims predominantly reside. These
Courts will be called the District Kadhi's Court to be held by a Kadhi.
Appeals from this Court shall be heard by the Provincial Kadhi's Court and will
be presided over by a Senior Kadhi. The last Court in this hierarchy shall
be the Kadhi's Court of Appeal and the Chief Kadhi assisted by 2 Senior Kadhi's
will preside over this Court which shall be the final Court of Appeal for the
Kadhi's Court's. The Kadhis Court of Appeal shall, in addition to
its usual sitting, also sit at regular intervals throughout each calendar year
in each of the regions of the country to hear appeals in those
regions. An appeal from the Kadhi's Court of Appeal shall lie to the
Supreme Court only on a point of Islamic Law or an issue affecting the
interpretation of this constitution as it relates to the Kadhi's Court's
provided always that the Court shall apply Islamic Law in determining the
appeal.
3. The jurisdiction of the Kadhi's Courts shall be increased to deal
with not only Muslim personal law but also to Civil and Commercial matters where
both Parties before the Court profess the Muslim faith. This enhanced
jurisdiction of the Kadhi's Courts will be subject and without prejudice to the
right of any Muslim to go to any Court other than the Kadhi's Court to deal with
such Civil or Commercial matter as the person so desires.
4. The Chief Kadhi shall have the same status, privileges and
immunities as a High Court Judge, the Senior Kadhi as a Chief Magistrate and the
Kadhi as a Resident Magistrate.
Muslim Lawyers who are experts in Islamic Law be appointed as Judges of the
High Court to hear appeals from the Kadhi's Court of Appeal.
Muslims in Kenya must be consulted in the nomination and appointment of the
Chief Kadhi and the Kadhi's either through their participation in the process
through an election or by their duly appointed representatives.
7(a) The qualification for appointment to the position of Chief Kadhi
shall be as follows:-
Must be a Muslim; aged 35 years and above but below 65 years.
(ii) Is an Advocate of the High Court of Kenya or is qualified to be
appointed as such and has been a legal practitioner for a period of not less
than 10 years; and
(iii) Has obtained at least a degree in Islamic Law from a recognised
University; or
Has not less than 10 years experience in the practice of Islamic Law, has
held the office of a Kadhi's Court for a similar period and has at least a
degree in Islamic law from a recognised university.
The qualification for appointment as a Kadhi and a Senior Kadhi shall be as
in (a) above with the exception that the years of experience shall be 5 years
under each of the categories of qualifications.
The composition of the Judicial Service Commission shall be expanded to
include the Chief Kadhi and one other person nominated by National Muslim
organizations who must be a Muslim woman.
The Chief Kadhi (and not the Chief Justice) shall be mandated to make the
Islamic rules of Court, of practice, procedure and evidence to be applied in the
Kadhi's Courts in consultation with the Chief Justice, the Law Society of
Kenya.
The Kadhi's Courts shall, in addition to their exclusive jurisdiction to
deal with the substantive Muslim personal law on inheritance and succession,
also have the power to determine the procedure to be applied in the
administration of the estates of deceased Muslims.
The Kadhis Courts be expressly mandated to deal with not only divorce in
Islamic marriages but also with the consequential matters that arise out of such
divorce and other matters incidental thereto or connected therewith e.g. custody
and maintenance of children, guardianship, adoption of children and division of
matrimonial properties.
The jurisdiction of the Kadhis court be expanded also to include the
administration of Wakf properties as are currently administered by the
Commission appointed under the Wakf Commissioners Act. Appropriate
amendments be made to the said Act to firstly expand its application and
operation throughout Kenya and secondly to vest in the relevant Kadhis courts
all the powers and functions as are now exercised by the Wakf Commission.
The work of the Chief Kadhi and the other Kadhis shall be strictly judicial
work in accordance with the Provisions of the constitution or any other written
Law defining their Jurisdiction.
That Islamic Law on marriage, divorce, inheritance and succession shall be
codified so that appropriate legislation is enacted dealing with the substantive
law of Islam on marriage, divorce and inheritance. The goal will be to
achieve an Act or Acts of Parliament dealing with the Islamic Law of marriage,
divorce and succession.
There should be a female assistant to the Kadhi's Court to assist in
dealing with the more delicate and intimate issues affecting women litigants in
the Court. Such female assistants to have basic knowledge of Islamic Law
where possible. Their role would basically be equivalent to administrative
officers in the courts and not as judicial officers. They would not
deputize for or act in the place of the Kadhis.
In the appointment of the Kadhis, consideration shall be given to the
appointment of Muslims of the Shia Sect to cater for the needs of the Shia
Muslims in Kenya.
References to Mohammedan Law in the constitution and in all other written
Laws should be changed to Islamic Law.
Islamic Law studies should be included in the Curriculum or course studies
for Law graduates in Kenya.
An office of an Islamic mufti or spiritual leader be established in Kenya
with functions and duties defined by law. The mufti must be elected by all
Kenyan Muslims. The qualification for appointment or election as a mufti
be equivalent to those of the chief Kadhi or a demonstrated competence as a
distinguished scholar in Islamic Law.
|
AHMED ISSACK HASSAN
COMMISSIONER, CKRC
MOMBASA, SEPTEMBER 2002.